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HARVARD STUDIES IN 
JURISPRUDENCE 



VOLUME I 



p~r 



THE '^ 

ENFORCEMENT OF DECREES 
IN EQUITY 



BY 



CHARLES ANDREWS HUSTON, S.J.D. 

PROFESSOR OF LAW IN STANFORD UNIVERSITY 
RESEARCH SCHOLAR IN HARVARD LAW SCHOOL, I912-1913 




CAMBRIDGE 
HARVARD UNIVERSITY PRESS 

LONDON: HUMPHREY MILFORD 
Oxford University Press 

1915 



\T 



..V 



■ie. 



Dissertation submitted to the Faculty of Harvard Law School in compliance 
with the terms of the Research Scholarship, June i6, 1913 



COPYRIGHT, 1915 

BY CHARLES ANDREWS HUSTON 



8 X^~^ 









3 



To ROSCOE POUND 
THIS ESSAY IS GRATEFULLY DEDICATED 



I 



fQ -C? ?■'';' !:'"'• 'T'^ 



PREFATORY NOTE 

This essay is written primarily to advocate an enlargement 
of the equity powers of American courts which will enable 
them to give a real effect to their decrees; for example, to 
transfer titles directly instead of by ordering a litigant to 
make the transfer. This is no innovation. Such power ex- 
ists in more or less perfect form in most of the states of the 
Union. Its operation is not a matter of conjecture, but can 
be observed over a period of more than a century of practice, 
and in a wide variety of social conditions. But some states, 
and it is beheved the Federal jurisdictions also, lack this 
power. Moreover it nowhere exists fully for all cases and 
its need has become more apparent to-day because of a 
definite trend in our legislation aiming at a restriction of the 
contempt process which constitutes the original, and still 
here and there the only, enforcing agency of our courts of 
equity. 

But although the primary purpose of the essay is thus to 
urge a specific reform of happily no very extended character, 
the treatment given the subject has aimed at considering it 
in the light of its wider juristic aspects. It is regarded, in the 
first place, as a phase of the tendency to enlarge the remedial 
powers of our courts, to make their administration of reUef 
more accurate and more effective than is possible now, where 
specific rehef, either reparatory or preventive, is regarded as 
on the whole merely auxihary to the substitutional rehef of 
damages. And, in the second place, it is regarded as a part 
of the movement which has gradually attenuated the func- 
tion of a trustee or other holder of the legal title to property, 
until to-day the beneficial owner who holds the equitable 



viii PREFATORY NOTE 

title is all but recognized as the real owner, his rights good 
against all the world, subject only to a power in his represent- 
ative, the holder of the legal title, to cut off his rights by a 
transfer to a bona fide purchaser. 

Not only for the suggestion of the field of investigation 
traversed by this discussion but for constant inspiration dur- 
ing the progress of the inquiry and for unlimited generosity 
in concrete suggestion and criticism the author is indebted to 
his friend and teacher. Professor Roscoe Pound of Harvard 
University. And to his friend and fellow student. Professor 
George Luther Clark of the University of Missouri, the 
author wishes also to make grateful acknowledgment of his 
generous interest and helpful criticisms. 



CONTENTS 

PAGE 

Prefatory Note vii 

Table of Cases and Authorities xi 

CHAPTER I 
Introduction — Thesis and Theoretical Argument 3 

CHAPTER n 

State of Anglo-American Law 13 

Section i. Existing Legislation 13 

Section 2. Enforcement of Decrees in the Federal Courts 25 

CHAPTER HI 

State of the Civil Law and Development of the Subject in 
Roman Law 39 

CHAPTER IV 

Argument from Particular Applications — The Need of Legis- 
lation AND Its Value 54 

CHAPTER V 
Sketch of the Development of Equitable Procedure in Rem . 71 

CHAPTER VI 

The Development of Equitable Interests into Real Interests . 87 

Section i. Introductory and Historical 87 

Section 2. The Doctrine of the Bona Fide Purchaser . . 114 
Section 3. The Doctrine of the Superiority of the Legal 

Title 131 

Section 4. The Present Trend of the Law 148 

APPENDIX OF STATUTES 157 

INDEX 185 



TABLE OF CASES AND AUTHORITIES 



PAGE 

Adams, Doctrine of Equity (i ed.) 79 

Agra Bank v. Barry, L. R. 7 H. L. 135 130 

Alabama : 

Clay's Digest, 354, § 57 19 

Allen V. Sayer, 2 Vern. 268 143 

Ames, Cases in Equity Jurisdiction 83 

Cases on the Law of Trusts (2 ed.) 57, 66, 105, 122, 123, 136, 138, 140 

142, 146 
Lectures on Legal History, 88, 91, 92, 95, 96, 116, 117, 129, 136, 139, 

144,145 

Origin of Trusts (4 Green Bag, 81) 95 

Specific Performance of Contracts (i Green Bag, 26) 96 

Amos, Specific Performance in French Law (17 L. Quar. Rev. 372) 

50,52,80 
Anonymous: 

Brooke, Abr. Conscience, 16, 22 77 

Equity Cases Abr. 130, pi. 3 77 

I Salk. 126 124 

Archbishop of York v. Osborn, i Cal. Proc. Ch. xciv loi 

Arndt :». Griggs, 134 U. S. 316 29,61,63 

Arnold v. South Pine Lumber Co., (Tex. App.) 123 S. W. 1162 ... 148 

Arrington v. Liscom, 34 Cal. 365 20 

Arundel v. Arundel, Monro, Acta Cancellariae, 741 80 

Ashburner, Principles of Equity 110,146 

Atty. Gen. i'. Downing, Wilmot i 90 

Austin, Lectures on Jurisprudence (5 ed.) 126 

Awbrey v. George, Monro, Acta Cancellariae, 758 80, 82 

Bacon, Learned Reading upon the Statute of Uses . . . 90, 91, 93, 98, 149 

Works (Spedding's ed.) 92 

Bacon I). Gray, i Cush. (Miss.) 140 142,143 

Baildon, Select Cases in Chancery (Selden Society) 91, loi 

Balch V. Beach, 119 Wis. 77 84 

Balch V. Wastall, i P. Wms. 445 100 

Bank of Africa, Ltd. v. Cohen, (1909) 2 Ch. 129 106 

Bardon v. Land & River Improvement Co., 157 U. S. 327 28 

Beck V. Allison, 56 N. Y. 366 69 

Beckwith's Case, 2 Rep. 58^ 92, 97 

Bentham, Principles of Legislation (Hildreth's trans.) 6 

Bevant v. Pope, Freem. 71 99 



Xll TABLE OF CASES AND AUTHORITIES 

PAGE 

Blackburn v. Graves, i Mod. 102 102 

Blackstone, Commentaries 7, loi 

Blackwood Wright, French Civil Code 49 

Bligh V. Earl of Darnley, 2 P. Wms. 619 82 

Boyle V. Zacharie, 6 Peters 635 26 

Brandlyn ?;. Ord, i Atk. 571 123 

Brine v. Ins. Co., 96 U. S. 627 34 

Broderick's Will, Case of, 21 Wall. 503 27 

Brograve v. Watts, Cro. Eliz. 651 82 

Brooks V. Tvvitchell, 182 Mass. 443 85 

Buckingham v. Drury, 2 Eden 65 95 

Buckland, Equity in Roman Law 43,44,47,49,80 

Bullocks. Bullock, 52 N. J. Eq. 561 31 

Burgess 7). Wheate, I Eden 177 101,102,103,106,107,149 

Burgh V. Francis, Rep. t. Finch, 23 100 

Burroughs, Legal Judicature in Chancery 76 

Cadell V. Smith, 3 Swanst. 308 77 

California, Code Civil Procedure: 

§ 187 23 

§§ 572, 574 22 

§ 684 83 

§738 23,85 

Campbell, Lives of the Lord Chancellors 99, loi 

Capital & Counties' Bank v. Rhodes, (1903) i Ch. 633 132 

Carey i;. Brown, 92 U. S. 171 138 

Casbourne v. Scarfe, i Atk. 603 102 

Case of Broderick's Will, 21 Wall. 503 . 27 

Case of Market Overt, 5 Rep. 836 124 

Cave V. Cave, 15 Ch. D. 639 105, 145 

Cave V. Mackenzie, 46 L. J. Rep. Ch. 564 105 

Chapman v. Smethurst, (1909) i K. B. 73, 937 151 

Chudleigh's Case, i Rep. 120a 92,93,102,108 

Clafiin v. Houseman, 93 U. S. 130 28 

Clark V. Cort, Cr. & Ph. 154 142 

Clark V. Smith, 13 Peters 195 28, 34 

Clark V. Walter, Monro, Acta Cancellariae, 718 79 

Clarke ». Ramuz, (1891) 2 Q. B. 456 151 

Cochrane v. Greene, 9 C. B. (n.s.) 448 142 

Code of Justinian, VII, 25 150 

Coke: 

2 Inst. 553 77 

4 Inst. 83 77 

Littleton, 2726 92,97 

Colorado: 

Laws, 1887, 254, § I 20 

R. S., c. 34, § 1408 85 

Colston V. Gardner, 2 Ch. Cas. 43 82 



TABLE OF CASES AND AUTHORITIES XI ii 

PACE 

Colt V. Colt, I Ch. Rep. 254 102 

Combe's Case, 9 Rep. 75a loi 

Connecticut Mutual Life Ins. Co. v. Cushman, ro8 U. S. 51 34 

Cook," Agency by Estoppel " (5 Columbia L. Rev. 36) 127 

" Agency by Estoppel": A Reply (6 Columbia L. Rev. 34) . . .127 

Cory V. Eyre, i De G. J. & Sm. 149 118 

Costigan, The Date and Authorship of the Statute of Frauds (26 Har- 
vard L. Rev. 329) 100 

Cox and Neve's Contract, (1891) 2 Ch. 109 iii 

Crompton, L'authoritie et jurisdiction des courts 8 

Cross V. Armstrong, 44 Ohio St. 613 64 

Cuq, Institutions juridiques des romains 49 

Dalamere v. Barnard, i Plowden 346 92, 97 

Daniell, Practice of the High Court of Chancery (i ed.) 82 

D'Arcy v. Blake, 2 Sch. & Lef. 387 102 

Dearie v. Hall, 3 Russ. i 146, 147 

Deck z). Whitman, 96 Fed. 873 33.35 

Dicey, Conflict of Laws (2 ed.) 66 

Dick z'. Foraker, 155 U. S. 404 63 

Digby, History of the Law of Real Property (5 ed.) 91 

Digest of Justinian: 

III, 2, I 42 

IV, 3, I, §4 42 

VI, I, 68 48 

XII, 3, I 41 

XII, 3, II 41 

Dillon, Laws and Jurisprudence of England and America 150 

Dixon V. Savile, i Bro. C. C. 325 107 

Doe V. Pegge, i T. R. 758, n 148 

Duke of Gloucester v. Bishop of Ely, i Cal. Proc. Ch. xc loi 

Dyer v. Leach, 91 Cal. 191 23 

Eales V. England, Prec. in Ch. 200 106 

Earl of Kildare v. Eustace, i, Vern. 419 S2 

Earl of Pembroke v. Ap Hoell, Monro, Acta Cancellariae, 368 .... 78 

Earl V. The Countess of Huntington, 3 P. Wms. 309, n 143 

Elliott V. Lander Machine Co., 236 Mo. 546 143 

Elvard v. Warren, 2 Ch. R. 192 83 

Englefield's Case, 7 Rep. 136 92,97 

EngUsh Statutes: 

50 Edw. Ill, c. 6 loi 

I Rich. Ill, c. I loi 

2,^ H. VIII, c. 20, § 2 102 

5 & 6 Edw. VI, c. II, § 9 102 

6 Geo. IV, c. 16, § 78 (Bankrupt Act) 14 

3 & 4 Wm. IV, c. 105 (Dower Act of 1833) 102 

4 & 5 Wm. IV, c. 23 107 



xiv TABLE OF CASES AND AUTHORITIES 

English Statutes (continued): page 

1 & 2 Vict., c. no, §§ i8, 19 83 

13 & 14 Vict., c. 60, §§ 15, 19 107 

15 & 16 Vict., c. 55 21 

47 & 48 Vict., c. 61, §§ 14, 24 (Judicature Act) 21 

47 & 48 Vict., c. 71, §4 106 

56 & 57 Vict., c. 53, §§ 26-35 (Trustee Act) 21 

56 & 57 Vict., c. 71, § 25 (Sale of Goods Act) 124 

Ewart," Agency by Estoppel " (5 Columbia L. Rev. 354) 127 

An Exposition of the Principles of Estoppel by Misrepresentation 127 

Estoppel by Assisted Representation (5 Columbia L. Rev. 456) . 127 

Ex parte Chion, 3 P. Wms. 186, n 107 

FalluEastin, 215 U. S. I 106 

Fall V. Fall, 75 Neb. 104 106 

Farquharson v. King, (1902) A. C. 325 130 

Felch iJ. Hooper, 119 Mass. 52 57 

Finch V. Earl of Winchelsea, i P. Wms. 278 100 

Finch's (Sir Moyle) Case, 6 Rep. 64 6 92, 97 

4 Inst. 86 108 

Fisher, Admiralty and Equity in Pennsylvania (Select Essays in Anglo- 
American Legal History, II, 810) 41 

Fitzherbert, Abridgment, Subpoena, pi. 14 93> 94 

pi. 19 92 

Florence Co. i;. Zeigler, 58 Ala. 221 123 

Flykke v. Banyard, i Cal. Proc. Ch. xcv loi 

Franco v. Franco, 3 Ves. Jr. 75 i39 

French Civil Code: 

Art. 1141 128 

Art. 1142, 1143, 1144 49-50 

Art. 2279-2280 128 

Art. 2280 124 

Fry, Specific Performance of Contracts (5 ed.) 10, 49) 5°, 69 

Gains, Institutes: 

II, §§40-41 150 

IV, 48 40 

Garland v. Jekyll, 2 Bing. 273 92 

Garsonnet et Cezar-Bru, Precis de procedure civil (7 ed.) 50 

Gary v. Northwestern Masonic Aid Ass'n, (la.) 50 N. W. 27 .... 64 

Geary v. Bearcroft, Carter 67 106 

German Civil Code: 

§§ 249, 251, 253 SO 

§§847ff-, 1300, 1715 • 51 

German Code Civil Procedure (Zivilprozessordnung) : 

§§883-890 51,80 

§§ 883, 884, 885, 887, 888, 894 51-52 

S8S8 80 



TABLE OF CASKS AND AUTHORITIES XV 

PACE 

Gibson v. Winter, 2 L. J. (n.s.) K. B. 130 139. Ui 

Gilbert, Forum Romanum 76, 81 

Law of Uses and Trusts (1734) 108 

Law of Uses and Trusts (Sugden's ed. 181 1) 109 

Girard, Manuel de droit remain 4^,49 

Glanvill, VIII, c. 5 72 

Glen V. Williams, 60 Md. 93 66 

Goold V. Petit, 2 Cal. Proc. Ch. xxxviii 94 

Goring v. Bickerstaff, i Ch. Ca. 41 loi 

Gormly v. Clark, 134 U. S. 338 28 

Gray, Rule Against Perpetuities (2 ed.) 106 

Hall V. Ewin, 37 Ch. D. 74 109 

Hallett V. Hallett, 2 Paige 15 66 

Hansard's Debates in the House of Commons 15,16,43 

Hart, The Place of the Trust in Jurisprudence (28 L. Quar. Rev. 290) . 115 

Hart V. Sansom, no U. S. 151 60 

Hazeltine, The Early History of English Equity (Essays in Legal His- 
tory, 261) 7 

Head v. Lord Teynham, i Cox 57 140 

Hening, The Original Drafts of the Statute of Frauds and Their Authors 

(61 Univ. Pa. L. Rev. 283) 100 

Hidden v. Jordan, 57 Cal. 184 23 

Hide V. Pcttit, i Ch. Cas. 91 82 

Higgs D. Holiday. Cro. Eliz. 746 124 

Hogg, Law and Equity — The Test of Their Fusion (22 Jur. Rev. 

244) 151 

The Legal Estate (22 Jur. Rev. 55) 135 

Hohfeld, Some Fundamental Legal Conceptions (23 Yale L. Journ. 16) 106 

The Relations of Equity and Law (11 Mich. L. Rev. 537) ... 151 

Holdsworth, History of English Law i35 

Holland i;. Challen, iioU. S. 15 63 

Hollander v. Central Metal Co., 109 Md. 131 59 

Holmes, Common Law 88 

Early English Equity (Select Essays in Anglo-American Legal His- 
tory, II, 716) 136 

Hopkins v. Hopkins, West t. Hardwicke, 606 loi 

Hovenden v. Annesley, 2 Sch. & Lef. 607 142 

Hovey z). Bradbury, 112 Cal. 620 143 

Huff cut. The Law of Agency 127 

Idaho: 

Code, §§ 4339-4341 23 

Illinois: 

Hurd's Stats., (1909) c. 22, § 47 83 

R. S., 1845, 98 19 

Ind, Coope & Co. v. Emmerson, 12 A. C. 300 149 

In re Hallett's Estate, 13 Ch. D. 696 152 



XVI TABLE OF CASES AND AUTHORITIES 

PAGE 

In re Hart, (191 2) 3 K. B. 6 130 

In re Nisbet and Potts' Contract, (1905) i Ch. 391, (1906) i Ch. 386 

110,143 
In re Scott, 8 Ir. Ch. 316 142 

Institutes of Justinian: 

IV, 6, 31 41 

IV, 6, 32 47 

Iowa: 

Code, § 2877 85 

Jenks, Modern Land Law 151 

Short History of English Law 95> 108, 133, 135, 151 

The Legal Estate (24 L. Quar. Rev. 147) 134 

Jennings I'. Jordan, 6 App. Cas. 698 153 

Johnson's Case, Popham, 106 96 

JoUy, Restrictive Covenants Affecting Land no 

Jones V. Jones, 140 Cal. 587 23, 85 

Jones V. Parker, 163 Mass. 564 69 

Jones V. Stanley, 2 Eq. Cas. Abr. 685, pi. 9 123 

Jones V. Yates, 9 B. & C. 532 139 

J. R. z*. M. P., Y. B., 37 H. VI, fol. 13, pi. 3 77,135 

Kentucky: 

C. C. Pr., §552 85 

Little's Laws, III, 460 19 

Kerly, Historical Sketch of the Equitable Jurisdiction of the Court of 

Chancery 75,95,96,135 

Kerr v. Blodgett, 48 N. Y. 62 66 

Kittelle v. Bellegarde, 86 Cal. 564 23 

Knudson z). Litchfield, 87 la. in 63 

Kohler, Philosophy of Law (Albrecht's trans.) 128 

Lane v. Newdigate, 10 Ves. 192 68 

Langdell, A Brief Survey of Equity Jurisdiction (i Harvard L. Rev. 55) 

7,115,136 

Summary of Equity Pleading 8, 76 

Langdon v. Sherwood, 124 U. S. 74 31 

Larson 7;. Betenbender, 100 la. no 85 

Lechmere :;. Earl of Carlisle, 3 P. Wms. 211 143 

Lee i*. Howlett, 2 Kay & J. 531 147 

Lewin, Law of Trusts and Trustees (n ed.) ... 89, 96, 100, 109, 130, 151 
Lightwood, Article Equity, in Halsbury, Laws of England, XIII, 4, 88, 113 
London & Southwestern Ry. v. Gomm, 20 Ch. D. 562 . . . 106, no, 113 

Lord Cornbury i;. Middleton, I Ch. Ca. 208 101,102 

Lord Cromwel's Case, 2 Rep. 78 92, 97 

Lord Grey v. Colville, 2 Rep. Ch. 143 100 

Lorman v. Clarke, 2 McLean 568 28 

Lucas V. Commerford, 3 Bro. 166 69 



TABLE OF CASES AND AUTHORITIES xvii 

PAGE 

Macdonnel, Sir Edward Coke, in Dictionary of National Biography 

(1908 ed.) IV, 696 92 

MacKenzie v. Childers, 43 Ch. D. 265 106 

Mackreth v. Simmons, 15 Ves. 329 123 

McMillan v. Barber Asphalt Paving Co., 151 Wis. 48 67 

Maddock, Equity Practice (i ed.) 81 

Maine, Dissertations on Early Law and Custom 153 

Maitland, Lectures on Equity 89, 95, loi, 105, 126, 130, 131, 133, 146, 151 

Outhnes of English Legal History (Collected Papers, 11, 417) . 96, 99 

Mansell v. Mansell, 2 P. Wms. 678 93 

Market Overt, Case of, 5 Rep. 836 124 

Maryland : 

Laws, 1785, c. 72, § 14 17 

Massachusetts: 

R. L., c. 147, § 17 25,57 

c. 148, § I 25 

c. 182, §§6-io 25 

Statute, 1783, c. 32, §4 66 

Mechem, Law of Agency (2 ed.) 125, 140 

Law of Sale of Personal Property 124 

Middleton v. Lorte, Monro, Acta Cancellariae, 245 83 

Miller v. Sherry, 2 Wall. 237 28 

Mills V. Bleckley, 51 S. C. 506 143 

Mississippi : 

Code of 1880, § 2673 143 

R. C, 1824, 92 19 

Missouri : 

Laws, 1835, Act Mar. 7, §§ 7, 8 19 

Monro, Acta Cancellariae 79 

Morley v. Martin, Rep. t. Finch 63 100 

Muirhead, Historical Introduction to the Private Law of Rome (2 ed.) 47 
Myrfyrne v. Fallan, 2 Cal. Proc. Ch. xxi 91 

Nash V. Preston, Cro. Car. 190 97 

Nebraska : 

Code Civil Procedure, §429 31 

Neitzel, German Land Law (21 Harvard L. Rev. 476) 52 

Specific Performance in German Law (22 Harvard L. Rev. 16 r) . 53 
New York : 

Code Civil Procedure, § 718 22 

Noel V. Jevon, 2 Freem. 43 98, 99 

Noonan v. Lee, 2 Black 499 26 

Ohio: 

RS., §5318 32 

Oklahoma: 

Constitution, Art. 11, § 25 5 

O'Reilly v. Miller, 52 Mo. 210 141 

Ormsby v. Ottman, 85 Fed. 492 63 



xviii TABLE OF CASES AND AUTHORITIES 

PAGE 

Parker 2). Patrick, 5 T. R. 175 124 

Parker v. Tenant, Jenkins Cent. Cas. 22, pi. 25 141 

Parmele v. McGinty, 52 Miss. 475 143 

Parsons v. Weis, 144 Cal. 410 85 

Pawlett V. Atty. Gen., Hardres 465 99, 102, 107 

Penn v. Lord Baltimore, i Ves. Sen. 443 80 

Pennoyer v. Neff, 95 U. S. 714 54 

Pennsylvania: 

P. L., 1901, c. 83, § I 20 

Pentland v. Stokes, 2 Ball & Beatty, 68 142, 143 

Perkins v. Wakeham, 86 Cal. 580 23 

Perryman v. Dinham, i Ch. R. 152 81 

Phillips j;. Phillips, 4 De G. F. & J. 208 129,144 

Pitt V. Hunt, 2 Ch. Cas. 73 100 

Pollock & Maitland, History of English Law (2 ed.) ... 72, 74, 91, 132 

Pomeroy, Equity Jurisprudence (3 ed.) 36, 69, 87, 89 

Powell, Attourneys Academy 77, 78, 79, 82 

Law of Mortgages (i Amer, ed.) 107 

Pound, Decadence of Equity (5 Columbia L. Rev. 20) 149, 150 

Review of Willoughby, The Legal Estate (26 Harvard L. Rev. 464) 

90, 138 

Poste, Gaius 40> 150 

Pratt V. Dow, 56 Me. 81 141 

Queen v. Painter, 4 Leon. 32, pi. 89 14c 

Quinton v. Frith, 2 Ir. R. Eq. 396 ■ 143 

Rayner v Stone, 2 Eden 128 . 69 

Rex V. Holland, Aleyn 15 98 

Style 20 98, ICO 

Rhode Island: 

Acts and Resolves, 1881, no 20 

Robinson v. Campbell, 3 Wheat. 212 26 

Robinson v. Kind, 23 Nev. 330 21 

Roby, Roman Private Law • ... 40, 44, 45, 46 

Roden v Murphy, 10 Ala. 804 141 

Root V. Woolworth, 150 U. S. 401 80 

Roiu-ke V. McLaughUn, 38 Cal. 196 23 

Royal Commission on Chancery Practice, Rep>ort 13,14,15 

Salkowski, Roman Private Law (Whitfield's trans.) 150 

Salmond, Jurisprudence (3 ed.) 6,126,127,132,140 

Samples T). Bank, Fed. Cas. No. 12278 66 

Sanders, Essay on the Nature and Laws of Uses and Trusts 107 

Saunders v. Gaynesford, 2 Cal. Proc. Ch. xxviii 94 

Scadden Flat, etc., Co. v. Scadden, 121 Cal. 23 23 

Schuster, Principles of German Civil Law 51 

Scott V. Scott, 4 H. L. C. 1065 144 



TABLE OF CASES AND AUTHORITIES Xix 

PACE 

Scrutton, Land in Fetters io8 

Selover TJ. Walsh, 226 U. S. 112 106 

Shannon v. Bradstreet, i Sch. & Lef. 52 105 

Shepherd z). Comm'rs, 7 Ohio 271 37 

Short i*. Caldwell, 155 Mass. 57 25,63 

Shropshire Ry. Co. z). The Queen, L. R. 7 H. L. 496 119, i35 

Silver Camp Mining Co. i;. Dickert, 31 Mont. 488 58 

Single V. Scott Paper Mfg. Co., 55 Fed. 553 32 

Sir Moyle Finch's Case, 4 Inst. 86 108 

6 Rep. 64b 92, 97 

Smith V. Bank of New England, 69 N. H. 254 66 

Sohm, Institutes of Roman Law (Ledlie's trans. 3 ed.) . . 43, 46, 88, 150 
Spence, History of the Equitable Jurisdiction of the Court of Chancery 

75,76,78,79,84,101 

Spencer's Case, 5 Rep. i6a no 

Spurr V. Scoville, 3 Cush. (Mass.) 578 56 

Stanton v. Embry, 46 Conn. 65 85 

Story, Equity Jurisprudence 84 

Sturge V. Starr, 2 M. & K. 195 105 

Sugden, A Practical Treatise of Powers 133 

Vendor and Purchaser (14 ed.) 129 

Sullivan f. Lumsden, 118 Cal. 664 23,85 

Sweetapple v. Bindon, 2 Vern. 536 102 

Tennant v. Fretts, 67 W. Va. 569 67 

Tennessee : 

Roulestone, Laws, 1792-1795, 246 18 

Scott, Laws, 261, 389 17 

Texas: 

Gen. L., § 1338 61 

Tiffany, Modern Law of Real Property 125 

Tourville v. Naish, 3 P. Wms. 306 123 

Tryppe v. Chevyn, i Cal. Proc. Ch. xcvi loi 

Tulk V. Moxhay, 2 Ph. 774 109 

Tyler D. The Judges, 175 Mass. 71 37,87 

Underhill, Law Relating to Trusts and Trustees 132 

Lord Haldane's Real Property and Conveyancing Bills (30 L. Quar. 

Rev. 35) 149 

Report of the Land Transfer Comm'rs (27 L. Quar. Rev. 173) . . 149 

Uniform Sales Act (American) § 25 124 

United States: 

Act Mar. 3, 1875, § 8 25,35,36 

Equity Rules, Rule 8 83 

Rule 9 70, 80 

Judicial Code, §57 25,35 

§§ 267, 268, 297 25 

§§ 267-268 25 

§ 297 26 



XX TABLE OF CASES AND AUTHORITIES 

United States {continued) : page 

R. S., §§723, 72s 25 

§738 32 

§913 37 

§§913, 917, 918 26 

§914 36 

§§915,916,917,918 37 

United States t'. Fox, 94 U. S. 315 '. 29 

United States v. Rowland, 4 Wheat. 108 26 

Vane v. Lord Barnard, 2 Vern. 738 68 

Villa J). Rodriguez, 12 Wall. 323 123 

Virginia: 

R. C, 1818, 204 19 

Virginia T. & C. Steel Co. v. Harris, 151 Fed. 428 37 

Wait 7). Kern River Co., 157 Cal. 16 24 

Warmstrey 7>. Lady Tanfield, I Ch. R, 29 101,102,108 

Watts V. Ball, i P. Wms. 108 loi 

West, Symboleography 77? 78 

Weston V. Danvers, Tothill 105 94 

Wetmore v. Porter, 92 N. Y. 76 139, 149 

Wharam v. Broughton, i Ves. Sen. 180 82 

White V. Geraerdt, i Edw. Ch. 336 83 

Whittlesey v. Delaney, 73 N. Y. 571 85 

Wigg i;. Wigg, I Atk. 384 123 

Williams, J., Principles of the Law of Real Property (21 ed.) .... 82 
WiUiams, T. C, Is a Disseisor of Land Bound by Equities Incumbent 

on the Disseisee ? (51 Solicitors' Journ. 155) 113 

Williams v. Otey, 8 Humph. 563 142 

Williamson v. Wilson, i Bland (Md.) 418 66 

WiUiston, Sales 125 

Willoughby, Review of (30 L. Quar. Rev. 127) 134 

Willoughby, The Distinctions and Anomalies Arising out of the Equit- 
able Doctrine of the Legal Estate 129,134,135 

Witham's Case, 4 Inst. 87 97 

Wood ?>. Mann, i Sumn. 506 123 

Woodall V. Clifton, (1905) 2 Ch. 257 106 

Woodruff V. Taylor, 20 Vt. 65 i37 

Worthy i). Birkhead, 2 Ves. Sr. 571 i49 

Wych V. East India Co., 3 P. Wms. 309 142 

Yancy v. Downer, 5 Litt. (Ky.) 8 85 

Year Books: 

5 Ed. IV (Mich.) 7 93 

8 Ed. IV (Mich.) 6 94 

22 Ed. IV (Pasch.) 6 94 



TABLE OF CASES AND AUrHORITIES XXl 

Year Books (continued) : page 

2 Rich. Ill, 9 77 

15 H. VII (Mich.) 13 94 

14 H. VIII (Mich.) fol. 4, pl- 5 92 

14 H. VIII (Mich.) 4 93,95,99 

14 H. VIII (Mich.) 8 94 

27 H. VIII, fol. 15, pl- 6 77 



THE ENFORCEMENT OF DECREES 
IN EQUITY 



4 



THE ENFORCEMENT OF DECREES 
IN EQUITY 

CHAPTER I 

•THESIS AND THEORETICAL ARGUMENT 

The comparatively frequent resort during the last quarter 
century to the use of the injunction in labor disputes has 
been a principal cause of two somewhat distinct agitations 
for legislation both state and federal. One movement is 
aimed directly at a reduction of the power of courts of equity 
to issue injunctions in these controversies; the other pro- 
poses to deal with the situation somewhat less directly, by 
limiting the power of the courts to enforce their orders and 
decrees by means of contempt proceedings. The possible 
effect of legislation of this latter sort may well cause concern 
in view of the antiquated and often ineffective machinery 
for enforcing equity decrees which exists in some of our 
jurisdictions, including those of the Federal courts. If this 
legislation, with respect to contempt, results in reducing 
inadvertently the power of some of our equity courts to 
enforce decrees not connected with the debatable jurisdiction 
over human conduct, but designed rather to protect rights 
indisputably proprietary in character, these courts will be 
left very inadequately provided with power to render effective 
service in the administration of justice. 

The vigor of this latter agitation is indicated by the 
number of bills annually submitted to our legislatures which 
deal with the subject of contempt. Already the common 
law jurisdiction of state courts in contempt proceedings has 
been limited in a large number of states — in one at least by 



4 THE ENFORCEMENT OF DECREES IN EQUITY 

constitutional provision ^ — and the most persistent efforts 
in the same direction are being made in Congress at every 
session. Thus in the 6ist Congress there were six bills pre- 
sented in the first session and four in the second, while in the 
62d ten bills were submitted in the first session alone. In- 
deed from 1896 to the present time the Judiciary Committee 
has at every session been called on, in some cases by special 
resolution of one or the other chamber, to consider proposed 
legislation on the subject, and the committees have several 
times reported favorably such bills to their own chamber. 

It is not within the field of this paper to consider the pro- 
posed legislation. But it is important for its purposes to 
point out that the requirement of a jury trial in cases where 
the defendant is alleged to be guilty of contempt in refusing 
or neglecting to obey a decree of a court of equity — e. g. 
that he specifically perform a contract to convey certain 
land — will seriously increase the cost to a complainant of a 
suit for specific performance against a recalcitrant defendant, 
as well as delay his redress. In a word, contempt process in 
a very large part of its field — its use as a means not of 
securing the dignity of the court from insult but of securing 
to suitors the rights which the court has adjudged them en- 
titled to — will be made very much more dilatory, costly, 
and hence ineffective. 

The agitation against the use of the contempt process, 
except in cases of contempt committed in the presence of the 
court, has been definitely useful in calling attention to the 
inadequate nature of the machinery of enforcement pos- 

1 Okla. Constitution, Art. II, § 25 : The legislature shall pass laws defining con- 
tempts and regulating the proceedings and punishment in matters of contempt. 
Provided, that any person accused of violating or disobeying when not in the pres- 
ence or hearing of the court, or judge sitting as such, any order of restraint or in- 
junction made or entered by any court or judge of the State, shall before penalty or 
punishment is imposed be entitled to a trial by jury as to the guilt or innocence of 
the accused. In no case shall a penalty or punishment be imposed for contempt 
till an opportunity to be heard is given. 



THESIS AND THEORETICAL ARGUMENT 5 

sessed by some of our courts of equity. It is well for us to 
realize that if contempt process is to be made a still more 
dilatory and expensive method of securing the enforcement 
of a decree for the protection of property rights, then suitors 
in Federal courts and in some state courts may be left practi- 
cally remediless in a large class of cases, often of great im- 
portance. Even in its most summary and effective form 
contempt process is a seriously ineffective method of enforc- 
ing a successful complainant's right. It is operative only 
upon the person of the defendant, and if he be contumacious 
or inaccessible through absence from the jurisdiction, or 
otherwise not amenable to the process of the court, the com- 
plainant may not be able to secure the right decreed to him, 
because of the inability of the court to enforce it. 

In the present legislative situation, where we must face the 
possibility of losing much of the effectiveness of even the 
present methods of enforcing an equity court's decrees, it is 
worth while to examine the general problem of the most de- 
sirable method of making the administration of equity's 
remedies effective, and of how far the present situation ap- 
proximates that method. 

The rules of law administered in courts of equity are purely 
civil, but of the remedies which courts administer on their 
civil side, equity affords more, and often more adequate 
ones, than can be obtained in a court of common law. There 
needs no argument to establish that equity's interference by 
way of injunction to prevent a threatened violation of a com- 
plainant's right is the most exact method of securing the 
interest which the law intervenes to protect. And in the 
case of a violated right, where the choice lies between the 
substitutional remedy of compensation by way of pecuniary 
damages and specific relief by way of having performed a 
duty which was wrongfully not performed, or having undone 
what was wrongfully done, there is little doubt that specific 



6 THE ENFORCEMENT OF DECREES IN EQUITY 

performance and reparation are superior remedies to pecu- 
niary compensation. Compensation does not undo but 
tolerates the wrong done; specific relief alone restores or 
establishes as far as possible in the nature of things the situa- 
tion contemplated by the law as just, the concrete fulfillment 
of the rights which have been threatened or infringed, the 
creation of the condition which would have existed had the 
right been voluntarily complied with. Unless, then, there 
are practical objections to the granting of specific relief by 
courts of law, it would seem that it should form the usual and 
basal remedy of a legal system.^ But the experience of civil 
law countries in which this primary and typical position 
among remedies is occupied by specific relief shows that no 
far-reaching practical difficulties prevent the realization of 
this rearrangement of the relative importance of specific and 
substitutional remedies in our law. Yet, as a matter of fact, 
under the theory as to the powers of courts of common law 
which developed in the King's courts, historically in our 
English system specific relief was available in a very limited 
class of cases. Actions in which a plaintiff could recover 
specifically property of which he was the owner were confined 
to cases of real property, with the somewhat narrow addition 
of replevin. In detinue, although the plaintiff's success 
might result in the restoration to him of his chattel wrong- 
fully detained, the restoration was at the option of a defend- 
ant who might as a substitute pay pecuniary damages. The 
narrow range of specific relief at law was due, in great part 

^ " Restitution in nature is chiefly due in the case of property which possesses a 
value of affection. But it is due in every case. The law ought to assure me every- 
thing which is mine without forcing me to accept equivalents, even though I have 
no particular objection to them. Without restitution in nature security is incom- 
plete. How can we be secure as to the whole when we are secure of nothing in par- 
ticular ? " Bentham, Principles of Legislation (Hildreth's trans.) 288. 

" It may be laid down as a general principle that wherever the law creates a duty 
it should enforce the specific fulfillment of it. What a man ought to do by a rule of 
law, he ought to be made to do by the force of law." Salmond, Jurisprudence, § 1 26. 



THESIS AND THEORETICAL ARGUMENT 7 

at least, to the ineffectiveness of the law court's procedural 
method in execution. 

The court was unwilling to exert pressure on the defendant 
to compel him to restore the specific property. Its procedural 
theory, as Professor Langdell has pointed out, was that the 
parties to an action owe no obedience to the court.' Hence 
its judgment is a mere declaration of the rights as between 
the parties over the subject-matter of the Utigation, and its 
process for execution is directed to the sheriff, commanding 
him to reahze the situation contemplated by the judgment 
as just ; to put the plaintiff in possession of the real property 
adjudged to be his, or to take the personal property which he 
wrongfully withheld from the plaintiff and deliver it to the 
plaintiff. Clearly the nature of real property enabled the 
sheriff specifically to fulfill the first command, but the defend- 
ant might in many cases remove or secrete chattels so as to 
defy the sheriff's search.^ Specific enforcement through the 
power of the sheriff is here, at least, relatively ineffective, 
and the best that the court of common-law jurisdiction could 
do, with its mode of execution, w^as to command its officer to 
seize what property of the defendant he could find capable of 
seizure, and apply it to the satisfaction of the judgment. 
Thus damages came to constitute the characteristic remedy 
of the courts of common law in practically all except the 
relatively narrow field of questions of the ownership of real 
property and the specific enforcement upon an officer of the 
performance of his duties by means of the extraordinary 
remedy of mandamus. 

On the other hand, the point of view of a court of equity 
and its characteristic procedure bring rehef by way of 

1 Langdell, Brief Survey of Equity Jurisdiction, Art. II, particularly 24 ff. But 
see Hazeltine, The Early History of English Equity, Essays iu Legal History, 261, 
269-284. 

" Cf. 3 Blackstone, Commentaries, 413, 414 and also 146. 



8 THE ENFORCEMENT OF DECREES IN EQUITY 

prevention and performance or reparation into the foreground 
of its remedies. Equity is a court of conscience. Its atten- 
tion is directed primarily to the duty of the defendant, and 
it vindicates the right of the plaintiff through compelling the 
defendant to fulfill specifically his correlative duty, ordering 
him to do the very act he is under obligation to do, or to re- 
frain from the very act he is under obligation not to do. 

But this power to act in personam upon the defendant, 
while in many ways enlarging the ability of the court to effect 
redress for the plaintiff, has also constituted a limitation in 
other ways upon the efficiency of the court as a remedial 
agency. The court of law can by its judgment transfer title 
from the defendant to the plaintiff. In equity, under the 
influence of the doctrine that equity acts only in personam, 
the legal title is transferred, not by the decree of the court or 
other act of the court itself or its officer, but by the convey- 
ance to be made by the party defendant.^ Thus justice to 
the complainant depends on whether the defendant can be 
made to submit to the coercion of the court and perform its 
decree. 

Professor Langdell has illustrated the essential difference 
between the modes of action of the two courts in a well 
known passage.^ 

When common law courts were in the habit of entertaining suits for 
the partition of land the partition was made by the court itself without 
any act of the owners of the property whatever. The court first ren- 
dered judgment that a partition be made (quod partitio fiat) ; where- 
upon a writ was issued to the sheriff directing him to make a partition 
of the land pursuant to the judgment, and report the same to the court. 
When this had been done, the court rendered another and final judg- 
ment that the partition so made remain firm and stable forever {firma 
et stabilis in perpetuum) ; and by force of this latter judgment each 
party acquired the exclusive title to the share allotted to himself and 

' See Crompton, L' Author itle et J iirisdiclion des Courts, 41b. 
* Langdell, Summary of Equity Pleading (2d ed.) 36. 



THESIS AND THEORETICAL ARGUMENT 9 

ceased to have any title to the shares allotted to the others. This 
power of extinguishing titles the chancellor never had nor claimed to 
have except when it was given to him by statute. It is true that he 
frequently directed the sale of property, but it was by his control over 
the person of the owner that he made the sale effective; i. e. when the 
sale had been made he compelled the owner to execute a deed pursuant 
to the sale; hence, when the owner was out of the jurisdiction or 
labored under any incapacity, e. g. that of infancy, the chancellor was 
powerless. He could not even make the appointment of a new trustee 
effective except by compelling the old trustee or his heir, or whoever 
held the legal title, to convey to the new trustee. When it became the 
practice to resort to chancery for the partition of land, what the chan- 
cellor really did was, first to inquire and ascertain how the property 
should be divided, and then to compel the parties to divide accordingly 
by the execution of mutual conveyances. 

To resume : it is in its provision for specific relief both pre- 
ventive and remedial that a cardinal superiority of equity as 
a means of securing legally recognized interests is manifest. 
The procedure of equity is in general better adapted to 
securing this relief than is that of lav^. Equity, unlike law, 
does put pressure directly on the defendant to compel his 
obedience to its decree, and so obtain specific performance by 
him of his duty to the plaintiff. But while this mode of pro- 
cedure is relatively more effective than that of law in securing 
specific relief, it is much less effective than it might be if 
equity were not confined to this one method. Specific exe- 
cution is, of course, a part of specific relief, the final step in 
the process of securing it. But our courts of equity obtain 
specific execution of their decree only by putting pressure on 
the defendant to execute it himself. Even in cases where 
equity has undoubtedly power to effectuate its decree by 
action through its ovm officers, where questions of the trans- 
fer of titles are not involved, equity has in practice been 
very reluctant to exercise this power. It has clung to its his- 
toric method of securing the plaintiff's right only through the 
action of the defendant in voluntary or enforced comphance 



lO THE ENFORCEMENT OF DECREES IN EQUITY 

with its decree. We shall investigate later the histori- 
cal background of this conservatism of equity. At present 
we are concerned merely to point out that analytically the 
line between specific relief and relief by way of damages ought 
not to be drawn between what can be enforced by pressure 
put on the person who threatens or has violated the plaintiff's 
right and what cannot be so enforced. Such a Hne makes the 
redress of the plaintiff depend on a purely accidental limita- 
tion of procedure. The line should be drawn between what 
can be enforced efficiently by any power of execution practi- 
cally possible to a court of law, and on the other hand what 
cannot be so enforced. In some situations, of course, specific 
relief is in the very nature of the case impossible, although 
the plaintiff is entitled to some redress or relief. Thus if A 
has contracted to sell and deliver to B a certain race horse, 
and through A's carelessness the horse has been injured and 
has died, B's only remedy is in damages. So also where A 
has killed B's pet dog, specific redress is impossible because 
the wrong of A has totally destroyed B's property right. 
Again, if A's negligence has merely lamed but not killed the 
horse, specific performance, though in some sense possible, is 
not an adequate fulfillment of B's right. Moreover, in some 
situations where specific performance or reparation is possible 
it cannot be enforced by a court because of the practical 
administrative difiiculties in the way. Thus juristic expe- 
rience has now led to the refusal everywhere on the part of 
courts to require specific performance of contracts for per- 
sonal service.^ Other examples in modern law are perform- 
ance of promises of marriage or restoration of conjugal 
rights. But where the personal element in performance is 
lacking, where the thing to be done can be done by the plain- 
tiff himself or by his employees at the expense of the defend- 
ant, or by officers of the court, there is no reason why specific 

1 Cf. Fry, Specific Performance (5th ed.) §§ 111-115. 



THESIS AND TUEORETICAL ARGUMENT II 

redress should not be obtainable in any case where it is neces- 
sary to do complete justice. Where specific reUef is the only 
adequate relief, and where it is obtainable by any process 
which a court of justice may expediently employ, whether 
through compulsion exercised on the person of the defendant, 
or by direct action of the court or its of^cers, or by action of 
the plaintiff under the supervision of the court and at the 
expense of the defendant, such process should be at the dis- 
posal of a court of equity, which under our Anglo-American 
system is usually the only court able to administer a remedy 
by way of specific relief. 

No better statement of the principle involved can be found 
than in the words of that great and learned lawyer Lord St. 
Leonards, used in introducing one of the earHest statutes 
designed to enlarge thus the powers of the English Court of 
Chancery. 

" Whatever," said Lord St. Leonards, then Sir Edward Sugden, 
" was the nature of the act to be done, whenever it was decided that it 
should be done, then let it be the business of the court to see its own 
commands carried into effect." ^ 

The original jurisdiction of equity — its power over the 
person of the defendant — is indispensable to specific relief 
in certain cases and most convenient in a still larger number. 
But there is a class of cases even more numerous where equity 
decrees do not require personal performance by the defend- 
ant, but where performance equally executive of the plain- 
tiff's right can be secured through other means; and these 
means also should be at the disposal of a court of equity. 

It is in brief the thesis of this essay that the specific relief 
granted by courts of equity should be made effective by an 
enlargement of the means of the court to execute it. That 
where " natural execution," to use the civil-law phrase, will 

1 32 Hansard 374. 



12 THE ENFORCEMENT OF DECREES IN EQUITY 

be more effective in realizing the plaintiff's right it should 
displace execution by contempt process. To illustrate: 
where a suit has been brought for the specific performance of 
a contract to convey land or for the removal of a cloud from 
the title to property, or for the establishment of a lost or de- 
stroyed deed or other instrument in writing, or for the can- 
cellation of an instrument or of a judgment inequitably 
obtained, or for the estabHshment or proof of a deed or other 
instrument not properly proved or acknowledged, in any of 
these cases the court might by recording its decree directly 
by that act transfer the title involved or cancel the wrong- 
fully obtained or controlled instrument or judgment. Or 
where further acts are necessary or advisable to complete the 
remedy to the plaintiff, the court might appoint a represent- 
ative of the court to perform them at the cost of the defend- 
ant, and under a provision that any act lawfully done by such 
representative shall be as efficient for all purposes as if done 
by the defendant. 



I 



CHAPTER II 
STATE OF ANGLO-AMERICAN LAW 

§1. Existing Legislation 

Statutes providing means of giving a real operation to the 
decrees of a court of equity in certain cases exist in most of 
the states of the Union as well as in England. The English 
statute was the chief if not the only reform which resulted 
from the great Royal Commission appointed in 1826 to in- 
quire into the practice of Chancery. The Commission was 
presided over by Lord Eldon, the Lord Chancellor; and 
among its members were Lord Redesdale; Lord Gifford, the 
Master of the Rolls; Sir John Leach, the Vice Chancellor; 
and other distinguished Chancery lawyers. Their recom- 
mendations were markedly conservative, but on the matter 
under discussion they used unwonted vigor and directness in 
characterizing the inefhcacy of contempt process to secure 
justice against a contumacious defendant.^ Their discus- 
sion runs : 

A difficulty has been sometimes experienced amounting to a failure 
of justice, from the contumacy of a party who refuses to obey a decree 
or order directing him to execute some instrument, thereby depriving 
his adversary of the benefit which he is entitled to derive from the 
judgment of the court. We propose that a power shall be vested in the 
court which will remedy this evil; and we also recommend some alle- 
viation in the process for obtaining possession of land when a party has 
obtained a decree or order for that purpose.- 

The recommendation of the Commission was as follows : 

Proposition 155.^ That where a person is in prison for disobedience 
of an order of the court directing him to execute some deed or other 

* Report of Royal Commission on Chancery Practice, I, 8. 
2/Wd., 34. ^ Ibid., 61. 

13 



14 THE ENFORCEMENT OF DECREES IN EQUITY 

instrument, there the court upon motion or petition supported by an 
afl&davit that such person upon application duly made to him, after he 
had been not less than one week in custody has again refused to obey 
such order shall, if it think fit, authorize one of the Masters of the court 
to execute such deed or other instrument, for and in the name of such 
person, and the Master so executing the same shall note under the 
name of the party so signed by him that such deed or other instrument 
was executed by him in pursuance of authority given to him by the 
said order, and a copy of such order shall be endorsed on the said deed 
or other instrument, and execution of the said deed or other instrument 
by said Master shall in all respects have the same force and validity 
as if the same had been executed by the party himself; and inasmuch 
as the order of the court directing the execution of such deed or other 
instrument may be appealed from, such deed or other instrument shall, 
after the same is executed, be impounded with the Master until the 
fvirther order of the court; and on the day of its execution notice 
thereof shall be given by the adverse solicitor to the party in whose 
name the same is so executed, who upon application to the court and 
payment or tender of the costs of his contempt shall thereupon be dis- 
charged from custody. 

The Commission appended to its recommendations an 
explanatory paper by the learned Mr. Beames, who on the 
proposition just cited made the following comment : ^ 

If the court directs a party to execute a deed or instrument and such 
party contumaciously refuses to do it, such refusal ought not to be 
suffered to defeat the ends of justice, but the court ought to be invested 
with a power of giving full and entire effect to its own orders, of direct- 
ing one of its own officers to execute such deed or instrument, which 
when so executed ought to have the same force and validity as if the 
party himself had executed it. The principle of this provision is not 
now for the first time attempted to be acted upon. The Bankrupt 
Act 2 enables the Lord Chancellor in given events to order the bank- 
rupt to join in any conveyance of his estate and if he refuses so to 
join the bankrupt is estopped from objecting to such conveyance, and 
is as effectually barred by the order as if the conveyance had been 
executed by him. 

1 Ibid., 107. * 6 George IV, c. 16, § 78. 



STATE OF ANGLO-AMERICAN LAW I 5 

It is perhaps noteworthy that the most persuasive reason 
for the EngHsh legislation seems to be the contumacy of de- 
fendants rather than the frequent impossibility of reaching 
them with the process of the court, the reason which weighs 
most heavily in our American jurisdictions. 

The agitation against the use of contempt process by courts 
of equity to secure the appearance of parties and the perform- 
ance of decrees had begun in Parliament at least as early as 
1810.^ It was one of the chief reasons for the appointment 
of the Commission of 1826. When the bill to incorporate 
into law the recommendations of the Commission was in- 
troduced in the House of Commons, February 11, 1830, by 
Sir Edward Sugden, the Solicitor General, his remarks in 
introducing the measure showed that he appreciated both 
the nature of the change his bill contemplated and the real 
basis of its justification. He said: 

The House would be aware that courts of equity acted ad personam 
and not ad rem and in all cases an appearance was necessary. Hence 
he proposed to enable a party to enter an appearance for a person who 
would not enter it for himself; if it were not done within a reasonable 
time by the defendant himself it should be done for him, and the jailor 
authorized to release the individual in contempt. The object of im- 
prisonment was to get a certain act performed, and as soon as it was 
performed either by the defendant or others the object was answered. 
. . . There was another reform he meant to introduce, which was 
this: that whenever any man was ordered to execute a deed, and that 
he did not immediately comply, the court instead of imprisoning him 
should execute the deed for him; and whenever it was proper for any 
man to do any act it should not be necessary to confine him for the 
remainder of his life but the court should proceed at once as if the thing 
were done. . . . Whatever was the nature of the act to be done, 
whenever it was decided that it should be done then let it be the busi- 
ness of the court to see its own commands carried into effect. 

He went on to show by returns made as to the imprison- 
ments in the Fleet that imprisonment was frequently quite 

1 35 Hansard 183. 



1 6 THE ENFORCEMENT OF DECREES IN EQUITY 

unsuccessful as a means of procuring the performance of the 
commands of the court, which after all was the thing to be 
aimed at.^ 

The introduction of the bill was followed by an acrimo- 
nious debate in which Joseph Hume made a bitter attack on 
Lord Eldon for twenty-five years of what would now be 
called stand-pattism in the matter of Chancery reform. But 
even Hume had nothing but praise for Sugden's measure, 
and in this he was joined by such another Radical as Daniel 
O'Connell. 

In the House of Lords the bill was introduced by the Lord 
Chancellor, and apparently met with no opposition. Sugden 
had stated as the object of the bill the amendment of the law 
relating to process of contempt and commitments for con- 
tempt by courts of equity, and this fairly describes the bill 
as it became law July i6, 1830. The section with which we 
are particularly concerned is number xv and subsection 1 5 
thereof, and is in effect an incorporation of the recommenda- 
tion of the Royal Commission already quoted. 

But even before the passing of the English Contempts Act 
several American jurisdictions had recognized the need of 
real process to supplement process directed against the person 
of a defendant. It may perhaps be conjectured that not 
merely the possibility of dogged contumacy on the part of 
such sturdy individualists as our forefathers of the first years 
of the Republic, but even more the ease with which contempt 
process could be evaded not only in the wilds of a frontier 
state but also by the simple change of residence into another 
jurisdiction speaking the same language and differing from 
the former only geographically — a change easier to people 
of pioneer habits than to the conservative English — brought 
home to the early legislators the need for such enactments. 
At any rate, even before the opening of the nineteenth cen- 

1 32 Hansard 374 et seq. 



STATE OF ANGLO-AMERICAN LAW IJ 

tury Maryland (1785) and New Jersey (i799)» and in its first 
decade Tennessee (1801), Connecticut (1807), and Ohio 
(1810) enacted statutes to give to their courts administering 
equity the right to transfer titles directly by the decree they 
rendered. The earUest statute of all seems to have been 
that of Maryland in 1785. In an act for enlarging the pow- 
ers of Chancery, sec. xiii reads: 

And be it enacted : That in all cases where a decree of the Chancel- 
lor shall be made for a conveyance, release, or acquittance, and the 
party against whom such decree shall pass shall refuse or neglect to 
comply therewith, such decree shall stand, to be considered and taken 
in all courts of law and equity to have the same operation and efifect 
as if the conveyance, release, or acquittance had been executed 
conformably to such decree. 

It is the language of this statute which seems to have 
been the model for many of the state statutes. Apart from 
this form it is hard to trace any type statute.^ 

The law of Tennessee discloses an interesting evolution. 
As early as 1782, in the organization of the courts of North 
Carolina, of which Tennessee was then a part, it was enacted 
that: 

Each superior court of law in this state shall also be and act as a 
court of equity for the same district.* 

In 1787 a statute was passed to permit service on absentee 
defendants by publication, the preamble being in these 
significant words: 

Whereas persons have sometimes ^\^thdrawn themselves beyond the 
limits of the state or otherwise have absconded to avoid appearing in 
courts of equity; and whereas no means have been provided to cite 
persons residing beyond the limits of the state to appear in said courts; 
for the remedy of the inconvenience thence arising . . . etc.^ 



1 Ala., .\rk., Kans. Cf. Miss., Mo., Nebr., N. J., Vt., Wash. 
* Scott, Laws of Tenn., 261. 
» Scott, 389. 



1 8 THE ENFORCEMENT OF DECREES IN EQUITY 

Finally, November 2, 1801, the procedure of chancery in the 
new State of Tennessee was provided for thus: 

Instead of decreeing parties to convey lands as heretofore practiced 
in Equity the said court shall have power by decrees respecting titles 
to divest thereby (without conveyance from the party) the property 
of the person or persons against whom a decree shall be made, under 
such conditions and limitations as may therein be expressed: Pro- 
vided always that copies of such decrees shall be recorded in the 
register's ofl&ce of the county where the land lies, agreeably to the law 
in force respecting the register of deeds.^ 

The development of the Connecticut law is also interesting 
and furnishes a parallel to that of Tennessee. The revision 
of the Connecticut Laws of 1784 introduced into its laws as 
to equity provisions authorizing a guardian of a minor ward 
to make a conveyance of any real estate of his ward which 
had been decreed by the court having cognizance of the 
same to be conveyed, and providing that a conveyance so 
made should be good and effectual at law. Further, in case 
the minor had no guardian at the time of the bringing of the 
suit for conveyance, the court might appoint one with power 
to carry the decree of the court into effect. 

Then in May, 1807, it was enacted: 

That the courts of Chancery in this state in every case wherein they 
have jurisdiction, and in their judgment they cannot otherwise effec- 
tuate their decree, be, and they are hereby authorized to pass the title 
to real estate by decree and without any act to be done on the part of 
the respondent or respondents and that such decree so long as the same 
shall remain in force, the same having been first recorded in the records 
of the town wherein the land lies, shall be as effectual as if the said real 
estate were granted by deed of the respondent or respondents in the 
usual manner. 

There are to-day two types of statute giving to courts of 
equity permission to act in rem. One of these provides that 

1 Roulestone's Z,azt'5, 1792-1795, 246. 



STATE OF ANGLO-AMERICAN LAW 1 9 

where a decree has been made for the execution of a convey- 
ance or other instrument by a defendant, and a failure on his 
part to comply with the decree has occurred, the court may 
appoint a master to make the conveyance or other instru- 
ment, and that this instrument so executed shall have pre- 
cisely the force and effect of one executed by the defendant. 
The other type provides that in case of a failure on the part 
of the defendant to perform as decreed after a certain lapse 
of time the decree recorded shall itself operate to transfer 
title. It is obvious from the statutes already discussed that 
the American type is the second of the two. This is the 
form of all three of the pioneer statutes discussed, and 
of their near contemporaries the Ohio and New Jersey 
statutes. 

Two early statutes, however, Kentucky in 1808 ^ and 
Virginia in 1818,- adopted the method of appointing an 
ofhcer of the court to make the conveyance. They had, 
however, no imitators until after the English legislation of 
1830; and the provisions by which in 1837 Connecticut and 
Tennessee enlarged their locally invented remedy so as to 
allow a conveyance by a commissioner or master under the 
direction of the court, as well as the Illinois statute of 1845 ^ 
adopting the single method of conveyance by a commissioner, 
seem to derive from the English statute, or at least to have 
been influenced by it. In the meantime Mississippi (1821),'* 
Missouri (1835),^ ^^d Alabama (1841) "^ adopted the Ameri- 
can plan, which now prevails in twenty-seven states and 
territories. Kentucky has enlarged her statute by allowing 
the decree to act as a conveyance, and the double remedy 
now prevails in Alabama, Indiana, Iowa, Kentucky, and 
Nebraska, and to a certain extent in Maryland. Three of 

1 3 Little's La-ivs, 460. ' 111. R. S. 1845, qS- 

2 R. C. 1818, 204. " R. C. 1824, 92. 
^ Mo. Laws, 1835, Act of March 7, §§ 7 and 8. 

6 Ala. 1841, Clay Dig., 354, § 57. 



20 THE ENFORCEMENT OF DECREES IN EQUITY 

the most recent statutes rather curiously adopt conveyance 
by an officer or appointee of the court as the sole method. 
These are Rhode Island (1881)/ Colorado (1887)^, and 
Pennsylvania (1901).^ The New York statute, a part of the 
Code of Civil Procedure in its present form, also effects the 
transfer by the action of a court officer, the sheriff. This 
statute is discussed specially later.^ 

One may conjecture that the closer association of the courts 
of law and equity in the American jurisdictions, an associa- 
tion which, even when separate courts were constituted, was 
much more intimate than in England, where even the 
chancery and common-law bars were thoroughly distinct, 
led to the more general and earlier adoption of the directer 
method so obviously suggested by the common-law judg- 
ment. In the English type of statute the adherence to the 
form of acting through a person not only marks the tenacity 
of the historical conception of the Kmits of equity jurisdic- 
tion, but also the line of development by way of the earlier 
statutes, whereby a court of equity was empowered to sub- 
stitute a new trustee for a trustee who was an infant or was 
non compos mentis} 

The American form of statute presents the advantages of 
simplicity, directness, and celerity of operation. A statute 
which provides that the decree when recorded shall itself be 
equivalent to a conveyance has the advantage of at once 
clearing up the record and preventing the double search that 
will be necessary when a deed appears on the register of 
deeds and an injunction against asserting the clouding claim 
is on the record of the court only. Moreover, in some cases, 
e. g. where the plaintiff's title is by adverse possession,*^ the 
mere cancellation of an outstanding claim will not give him 

1 Acts and Resolves, 1881, no. ^ Laws 1887, 254, § i. 

' Publ. Laws, c. 83 (loth April 1901) § i. 

* See post, p. 21. ^ See post, p. 85. 

« Cf. Arrington v. Liscom, (1868) 34 Cal. 365. 



STATE OF ANGLO-AMERICAN LAW 21 

a marketable title; but a recorded deed under the statute 
would serve this end as well as remove the cloud. 

As a matter of fact, it was not very long until England 
added the directer method also, by its plan of " vesting 
orders," through which the court is empowered in a great 
variety of cases to vest the property in dispute in the suc- 
cessful litigant just as effectively as if the person decreed to 
execute the conveyance or release had been of full capacity 
and had obeyed the decree.^ At present the English legis- 
lation furnishes a model worthy of imitation both in the 
extent to which it applies the principle of allowing to the 
equitable decree of the courts a real effect and in the wide 
discretion it gives to the courts in the use of this added 
power.- 

During the nineteenth century legislation in almost all the 
states of the Union made some eft'ort to enlarge the power of 
equity by giving a real effect to its decrees. The provisions, 
with the date of their earliest appearance on the statute 
books, are collected in an appendix. Some comment upon 
them may be permitted here. It seems that even to-day 
New Hampshire, New Mexico, and South Carolina rely on 
process in personam against the defendant to" secure the 
execution of decrees of equity commanding the performance 
of acts other than the payment of money. So far as statu- 
tory provision goes Nevada seems to be in the same position, 
but the Nevada court in the case of Robinson v. Kind ■* held 
that an action to cancel as obtained by fraud a trust deed of 
Nevada land was an action substantially in rem, as having 
for its object to reach and dispose of real property within the 
state, and that no other than two existing Nevada statutes, 
one establishing a local venue for actions concerning real prop- 

^ Act to extend the provisions of the Trustee Act, 15 & 16 V'ict., c. 55; and cf. 
Trustee Act, 56 & 57 Vict., c. 53, §§ 26-35. 

^ Ibid., and Supreme Court of Judicature Act, 47 & 48 Vict., c. 61, §§ 14, 24. 
' 23 Nev. 330. 



22 THE ENFORCEMENT OF DECREES IN EQUITY 

erty and one authorizing service by publication upon non- 
residents, were necessary to enable a state court to render a 
decree against non-resident defendants which should operate 
to annul the deed complained of, and also to vest the title in 
the property in the plaintiff. 

The position of the legislation of California and Idaho as 
compared with Montana and New York affords an interest- 
ing sidelight on the methods of American legislation. The 
relevant New York statute is a part of the Code of Civil 
Procedure.^ It is an amendment of the original section of 
the Code of 1848. In its first form the Code provided merely 
that a court which had, under certain circumstances, required 
a deposit in court of money or other personal property 
capable of delivery might, if the order for the deposit were 
disobeyed, besides punishing for contempt, direct the 
sheriff to take the money or other thing and deposit or deliver 
it in conformity with the direction of the court. In 1851, 
however, the Code sections on this point were amended to 
include a provision that where the court had directed a 
conveyance of real property, if this order were disobeyed the 
court might then order the sheriff to convey the real property 
in conformity with the direction of the court. As is well 
known, several other states adopted the Code of Civil Pro- 
cedure as their own. But the Practice Act of Cahfornia in 
185 1 came so close on the heels of the New York legislation 
that it adopted the original rather than the amended form, 
and this original clause was re-enacted, still without amend- 
ment, in the Cahfornia Code of Civil Procedure of 1872, as 
§ 574. Section 572 had provided, following the New York 
Code of 1848, for the cases in which the courts might order a 
deposit of money or personal property to be made. The 
California Code of Civil Procedure was the model on which 
Idaho and Nevada framed their codes of procedure, and the 

' § 718. 



STATE OF ANGLO-AMERICAN LAW 23 

Idaho Code (1881) contains provisions ^ as to deposits quite 
like the two of California — § 572 and § 574. But Nevada 
re-enacts § 572 only and omits entirely any provision as to 
enforcement of the orders by the sheriff. Montana, on the 
other hand, in 1895, followed the amended form of the New 
York Code, which authorizes conveyances by the sheriff. 
The Dakotas, while following the California and New York 
codes very closely in the main, have enacted independent 
legislation on this point. 

California and Idaho have, however, in some measure 
supplied the lack of a comprehensive statute by another 
pro\asion of their codes which authorizes actions to quiet 
titles, and this provision as interpreted by their courts 
enables a court which decides a case of adverse claims to 
estates or interests in real property to establish the title in 
the successful claimant, either directly by the decree or by 
ordering a commissioner to convey to him.^ But the Cali- 
fornia court has gone even beyond this Hberal interpretation 
of the statute, and claims authority on general equitable 
principles to give a real effect to its judgments as to property 
either real or personal. Thus Rourke v. McLaughHn,^ held 
that a court having jurisdiction over the parties or the 
subject-matter of the suit could decree specific performance 
of a contract to convey. The contract involved was for the 
sale of California land, and it was urged that as the vendor 
was a resident of Ireland he could not be compelled to exe- 
cute a conveyance. But the court said his absence would 
not prevent a California court from compelling a deed to be 
given by him himself or by a commissioner appointed to act 

1 §§ 4339-4341. 

2 Cal. Code Civ. Proc. § 738; Perkins v. VVakeham, (1890) 86 Cal. 580; Kittelle 
V. Bellegarde, (1890) 86 Cal. 564; Sullivan v. Lumsden, (1897) 118 Cal. 664; Jones 
V. Jones, (1903) 140 Cal. 587. 

» (1869) 38 Cal. 196. Cf. also Hidden v. Jordan, (1881) 57 Cal. 184; Dyer v. 
Leach, (1891) 91 Cal. 191. The case of Scadden Flat, etc., Co. v. Scadden, (1898) 
121 Cal. 23, 41 relies on C. C. P. § 187, q. v. in App. 



24 THE ENFORCEMENT OF DECREES IN EQUITY 

in his place. This decision was quoted and relied upon in 
the recent case of Wait v. Kern River Co.^ in which the 
court, without any attempt to base its position on a statute, 
decides that it has power to convey by its decree title to 
certain shares of stock having a situs in California to a 
claimant against one held to be a constructive trustee of the 
shares, although this trustee was a non-resident and served 
by publication only. The court described the action as: 

Action for specific performance against a party who is a non- 
resident and cannot be personally served, in a case where the whole 
subject-matter of the case is within this State and nothing remains to 
be done but to compel a transfer thereof. While it is well settled that 
a decree for specific performance of a contract operates primarily in 
personam, yet in a limited and qualified sense it may also be said to 
operate in rem when the property to be transferred imder the contract 
is within the jurisdiction of the court but the defendant is absent 
therefrom (26 A. & E., 132). Where the whole relief sought consists 
in the mere delivery of property within the jurisdiction of the courts of 
a state to a party entitled thereto, under a contract, the proceeding 
is in a sense one in rem — sufi&ciently so, in our judgment, to give such 
courts jurisdiction to effectuate delivery against a non-resident 
defendant. 

This practical disregard of a lack of statutory authority 
to proceed in rem, and the definite assertion that the nature 
of the right enforced makes the jurisdiction a jurisdiction in 
rem is not without parallels in other courts, and is highly 
significant of the direction in which the law as to equitable 
rights is moving. 

California, then, and Nevada, and in all probability Idaho 
as well, eke out defective statutes by alleged interpretation 
or by asserting a power in equity independent of statute to 
give a real effect to its decrees. 

In several other states the scope of the legislation is 
unnecessarily narrow. Thus in Delaware it is confined to 
cases of trusts. Massachusetts has no single comprehensive 

1 (1909) 157 Cal. 16. 



STATE OF ANGLO-AMERICAN LAW 25 

statute, but covers parts of the field by three different pieces 
of legislation: one as to conveyances by an executor or 
guardian;^ one confined by its terms to trusts' but very 
liberally interpreted,^ and one as to quieting title.'* A large 
number of statutes are confined by their terms to decrees as 
to real property, although there is no good reason why decrees 
as to other property should not have the benefit of the 
statute. Some statutes have been construed as not even 
covering all cases of decrees as to real property; ^ and the 
phrasing of a number is now becoming obsolete.*^ More- 
over, the statutes vary widely in the language in which they 
are expressed, and in the fullness of detail they employ in 
specifying the cases in which the decrees will be given real 
effect. All these differences are to be expected in statutes 
ranging in date from 1785 to 1901, and a fourth of them more 
than half a century old. 

But this variety not only of drafting but also of experience 
under these different acts — an experience obtained in a 
great range of social and political conditions and over a long 
period — should furnish an unusually good basis for the con- 
struction of a uniform statute, modern in phraseology^ and 
ample in extent of applicability. 

§ 2. Enforcement of Decrees in the Federal 
Courts 

The situation in the Federal courts requires special treat- 
ment. The statutory provisions material in the discussion 
are §§ 267, 268, and 57 of the new Judicial Code (substan- 
tially §§ 723 and 725 R. S.), Act of March 3, 1875, § 8, and 

> R. L., c. 148, § I. 2 K. L., c. 147, §17- 

' Of. p. 60 and also Short v. Caldwell, (1891) 155 Mass. 57. 

* R. L., c. 182, §§ 6-10. 

' Tex. statute discussed p. 61 infra, and if. statutes of Ind. and la. 

* See Maryland statute of 1785 and statutes in whole or part using the same 
phraseology cited pp. 17 and 18 supra. 



26 THE ENFORCEMENT OF DECREES IN EQUITY 

§§ 913, 917, and 918 R. S., not embodied in the Judicial Code 
but not expressly repealed thereby.^ To these, by virtue of 
the powers granted in the last three sections, should be 
added the newly promulgated Equity Rules, and in particular 
Rules 7 and 8. 

The doctrine of the Federal courts as to their jurisdiction 
in equity has always been most strict. 

Original jurisdiction in equity has been interpreted to impose the 
duty to adjudicate according to such rules and principles as governed 
the action of the Court of Chancery in England which administered 
equity at the time of the emigration of our ancestors and down to the 
Constitution.^ 

This jurisdiction is uniform throughout the states and un- 
affected by state laws. This was early laid down by 
Marshall and received classic statement by Story in Boyle 
V. Zacharie.^ 

The Chancery jurisdiction given by the Constitution and laws of 
the United States is the same in all the states of the Union, and the 
rule of decision is the same in all. In the exercise of that jurisdiction 
the courts of the United States are not governed by the state practice; 
but the Act of Congress of 1792, ch. 36, has provided that the modes of 
proceeding in equity suits shall be according to the principles, rules, 
and usages which belong to courts of equity as distinguished from 
courts of law; subject of course to the provisions of the Acts of Con- 
gress, and to such alterations and rules as in the exercise of the powers 
delegated by those acts the courts of the United States may from time 
to time prescribe.'' 

Likewise in Noonan v. Lee ^ Judge Swayne said : 

The Equity jurisdiction of the United States is derived from the 
Constitution and laws of the United States. Their powers and rules 

^ See § 297 of the Judicial Code. 

2 United States v. Howland, (1819) 4 Wheat. 108, 115. 

' (1832) 6 Peters, 635, 657-58. 

* Cf. also per Todd, J., in Robinson v. Campbell, (1818) 3 Wheat. 212, 222. 

^ (1862) 2 Black. 499, 509. 



STATE OF ANGLO-AMERICAN LAW 2"/ 

of decision are the same in all the states. Their practice is regulated 
by themselves, and by rules established by the Supreme Court. 
This Court is invested by law with authority to make such rules. In 
all these respects they are unaffected by state legislation. 

It is frequently said that an exception to this doctrine 
exists in the fact that an enlargement of equitable rights 
by the statutes will be administered by the Federal courts. 
In the language of the leading case, the court, speaking by 
Mr. Justice Bradley, said: 

Whilst it is true that alterations in the jurisdiction of the state 
courts cannot affect the equitable jurisdiction of the Circuit Courts of 
the United States, so long as the equitable rights themselves remain, 
yet an enlargement of equitable rights may be administered b}' the 
Circuit Courts as well as by the courts of the State.^ 

There is no doubt of the entire soundness of this doctrine 
as frequently set forth by the United States Supreme Court. 
But it does not constitute any exception to the general 
doctrine that the equity jurisdiction of the Federal courts 
is derived solely from the Federal Government and is 
national in character. A Federal court is not a foreigner 
within the state in which it exercises its powers. In a 
large part of its work its jurisdiction is concurrent with 
the courts of the states. It finds its rules of decision, in 
cases which do not arise under the Constitution of the 
United States or the laws of Congress, in the local law of 
the state which created the right asserted. 



^e>' 



Every citizen of a State is a subject of two distinct sovereignties 
having concurrent jurisdiction in the State — concurrent as to place 
and persons, though distinct as to subject-matter. Legal or equitable 
rights acquired under either system of laws may be enforced in any 
court of either sovereignty competent to hear and determine such 
kind of rights and not restrained by its constitution in the exercise of 
such jurisdiction. Thus a legal or equitable right acquired under 

* Case of Broderick's Will, (1874) 21 Wall. 503. 



28 THE ENFORCEMENT OF DECREES IN EQUITY 

State laws may be prosecuted in the State courts, and also, if the 
parties reside in different states, in the Federal courts. ^ 

Now the jurisdiction which the Federal court has over the 
right created by the state law, its capacity for exercising the 
powers of a court of equity upon the right, comes entirely 
from the Federal law. The right may be new, newly created 
by a local statute, and existing in no other state in the Union, 
but that is immaterial on the point of jurisdiction. If it 
comes within those powers of a court of chancery which the 
Federal Government has bestowed upon its courts, they will 
enforce it. The right may originate under the local law, but 
the jurisdiction of the court over it is derived from the 
Federal law.^ 

The rights, then, which a court of equity may protect by 
its appropriate remedies are often created and regulated by 
state laws. But the remedies by which these rights are pro- 
tected are wholly the creatures of the Constitution and laws 
of the United States. They are uncontrolled by the practice 
of the state courts.^ 

But in spite of this the United States Supreme Court as 
well as other Federal courts have more than once upheld the 
exercise by Federal courts of a power to convey legal title by 
their decrees in equity on the strength of a state statute 
giving such power to the state court having jurisdiction in 
the territory in which the property in litigation was situated. 
Probably the leading case is Clark v. Smith.'* Here a bill to 
remove a cloud from title was brought in the Circuit Court 
of the United States for the District of Kentucky. The 

1 Bradley, J., in Claflin v. Houseman, (1876) 93 U. S. 130, 136. 

2 See Lorman v. Clarke, (1841) 2 McLean 568, an excellent discussion of the 
whole matter of the equity jurisdiction in U. S. courts. See also Miller v. Sherry, 
(1864) 2 Wall. 237, 249. 

3 See Gormly v. Clark, (FuUer, C. J.) (1890) 134 U. S. 338, 348; Bardon v. Land 
& River Improvement Co., (1894) 157 U. S. 327, 330. 

* (1839) 13 Peters 195. 



STATE OF ANGLO-AMERICAN LAW 29 

complainant was in possession of the property and held the 
legal and equitable title to it. But the defendant was claim- 
ing the land by virtue of a patent from the state. The bill 
asked that the defendant be compelled to release his claim, 
and that a conveyance be decreed under the provisions of 
the state statute. The statutory provision as to what should 
constitute clouds on title which could be removed in equity 
applied to the case, but the judges of the Circuit Court, being 
divided in their opinion on the question of the jurisdiction 
of that court to compel the defendant to execute the convey- 
ance prayed for, dismissed the bill. The complainant ap- 
pealed to the Supreme Court, and it held that the Circuit 
Court had this power. 
The court said : 

The legislature having declared that he who has the legal and 
equitable title and the possession may treat the adverse claimant as a 
trustee and coerce a release to himself of the inferior claim, of course 
the statute secures a highly valuable right which it was the duty of 
the courts to enforce, and which can only be enforced in a court of 
equity. 

Kentucky has the undoubted power to regulate and protect 
individual rights to her soil and to declare what shall form clouds on 
titles; and having so declared the courts of the United States by re- 
moving such clouds are only applying an old practice to a new equity 
created by the legislature. 

Where the legislature declares certain instruments illegal and 
void . . . there is inherent in courts of equity a jurisdiction to order 
them to be deUvered up and thereby give effect to the policy of the 
legislature. 

To this reasoning there can be no objection. The Federal 
courts must and do recognize the power of the state to 
regulate the tenure of property within its limits, and the mode 
of its acquisition and transfer.^ The Federal court must, in 

» Arndt v. Griggs, (1S89) 134 U. S. 316, 320; U. S. v. Fox, (1S76) 94 U. S. 315, 
320. 



30 THE ENFORCEMENT OF DECREES IN EQUITY 

the exercise of its concurrent jurisdiction, enforce this state- 
created right — but by its own remedies.' 

But the Supreme Court went further, and urged that the 
Circuit Court had authority under the statute not only to 
decree a conveyance and to enforce it by the process provided 
by Congress for the enforcement of decrees of Federal 
courts, but also to make the transfer of title directly, as a 
Kentucky court could have done. Justice Catron said : 

The state legislatures certainly have no authority to prescribe the 
forms and modes of proceeding in courts of the United States; but 
having created a right and at the same time prescribed the remedy to 
enforce it, if the remedy prescribed is substantially consistent with the 
ordinary modes of proceeding on the Chancery side of the Federal 
courts, no reason exists why it should not be pursued in the same form 
as in the State courts; on the contrary, propriety and convenience 
suggest that the practice should not materially differ, where titles to 
land are the subject of investigation. And such is the constant course 
of the Federal courts. For instance, in Tennessee the legislature has 
provided that the courts of equity may divest a title and vest it in 
another party to the suit; and that the decree shall operate as a legal 
conveyance. So in Kentucky the legislature has declared that the 
courts may appoint a commissioner to convey as the attorney in fact 
of a litigant party; and that such deed shall pass the title: in both 
instances binding infants and femes covert if necessary. The Federal 
courts in the states rejerred to have adopted the same practice for many 
years, without a doubt hailing been entertained oj its propriety.^ It may 
be said with truth that this is a mode of conveyance and of passing 
title which the states have the exclusive power to regulate; still the 
same statute that conferred the power thus to decree a conveyance 
prescribed the mode of proceeding; and had the form of the remedy 
been rejected by the courts of the United States the right to have such 
record conveyance would have fallen with it, as they could not be 
separated. 

The doctrine that the Federal courts can use the enforcing 
machinery provided for state courts by a state statute 

1 That the enforcement of a decree in equity is remedial process see the opinion 
of Garrison, V. C, in Bullock v. Bullock, (1894) 52 N. J. Eq. 561, 570. 

2 Italics supplied by the author. 



STATE OF ANGLO-AMERICAN LAW 3 I 

received additional and even more direct confirmation in 
the case of Langdon v. Sherwood.^ In an ejectment suit 
the plaintiff relied for title on a decree of a Nebraska court 
under the state statute - which provided that the decree 
itself should operate as a conveyance in case the defendant 
failed to comply with the decree within a certain time. The 
defendant in the suit in the state court had never made a 
conveyance, and it was now contended that the plaintiff 
had therefore never received the legal title, but only an 
equitable one, and the quieting of that title against the 
defendant in the Nebraska suit. The court upheld the 
plaintiff's title. 
Justice Miller, speaking for the court, said: 

It was undoubtedly the ancient and usual course in such a proceed- 
ing to compel the party who should convey to perform the decree of 
the court by fine and imprisonment for refusing to do so. But inas- 
much as this was a troublesome and expensive mode of compelling the 
transfer, and the party might not be within reach of the process of the 
court, so that he could not be attached, it has long been the practice of 
many of the states under statutes enacted for that purpose to attain this 
object, either by the appointment of a special commissioner who should 
convey in the name of the party ordered to convey, or by statutes 
similar to the one under consideration, by which the judgment or decree 
of the court was made to stand as such conveyance on the failure of the 
party ordered to convey. The validity of these statutes has never 
been questioned so far as we know, though long in existence in nearly 
all the states of the Union. There can be no doubt of their efficacy in 
transferring the title in the courts of the states which have enacted 
them ; nor do we see any reason why the courts of the United States may 
not use this mode of efecting that which is clearly within their power? 

The question of the mode of transferring real estate is one pecu- 
liarly within the jurisdiction of the legislative power of the state in 
which the land lies. As this court has repeatedly said, the mode of 
conveyance is subject to the control of the legislature of the state and 
as the case in hand goes upon the proposition that the title had passed 

• (1888) 124 U. S. 74. ^ Italics supplied by the author. 

^ Code, § 429. 



32 THE ENFORCEMENT OF DECREES IN EQUITY 

from the government of the United States and was in controversy 
between private citizens, there can be no valid objection to this mode 
of enforcing the contract for conveyance between them according to 
the law of Nebraska (citing cases). We cannot see, therefore, any 
error in the circuit court in permitting the proceedings in the chancery 
suit to be given in evidence, nor in giving them the effect of transfer- 
ring from the Santee Land, &c. Co. (the Nebraska defendant) such 
legal title as it had to any of the property in controversy. 

An additional example of this position in the Federal 
courts is furnished by the case of Single v. Scott Paper Mfg. 
Co.^ This was a case in the Circuit Court of the United 
States for the Northern District of Ohio, Western Division. 
It was a suit by Single, a non-resident, against the Scott 
Paper Co. and others, also non-residents, to enforce specific 
performance of a contract to convey real estate lying within 
the jurisdiction of the court. A motion was made to dismiss 
the bill for want of jurisdiction, and this was denied. The 
court relied on R. S. 738 to give it jurisdiction, since the 
statute of Ohio ^ provided a real effect to a judgment decree- 
ing specific performance of a contract concerning land within 
the jurisdiction of the court. It then proceeded to discuss 
the remedy it was entitled to grant, and concluded : 

If the complainant shall establish the allegations of his bill by 
proper evidence, and show that the contract set forth was properly 
executed by persons duly authorized, and that he is entitled to a 
specific execution of said contract, this court will have jurisdiction to 
order the defendants within a time named to make such conveyance. 
If they fail to do so, and are beyond the jurisdiction of the court so 
that personal enforcement of the order will be impossible, the decree 
may provide that on a failure on their part to comply with the order 
of the court, the decree in and by itself may divest the defendants of 
all title in said property and vest the same in the complainant. The 
equities of the case, so far as the allegations of the bill are concerned, 
are all with the complainant. It presents a case where the court ought 
to retain jurisdiction if it can rightfully do so, because the reUef sought 

1 (1893) 55 Fed. 553. ^ r. s. 5318. 



STATE OF ANGLO-AMERICAN LAW 33 

is just and equitable in the highest degree. I am therefore of the 
opinion that this court has jurisdiction over the property involved in 
this controversy, and over the defendants so far as they have any 
claim or title to said property; that this proceeding is substantially a 
proceeding in rem; and that the general powers conferred upon this 
court as a court of equity under the Constitution and laws of the 
United States are so enlarged and made more effective, by the statutes 
of the State of Ohio, as that upon final hearing if the complainant shall 
establish his right to relief, full and adequate protection can be given 
him to enforce the specific execution of the contract set out in his bill. 

Finally, in Deck v. Whitman,' the question was considered 
with great fullness in view of a doubt which had been cast 
on the right of Federal courts to exercise the power of passing 
title by decrees on their equity side under the statutes of 
Tennessee. The defects of the procedure in personam were 
forcibly pointed out, as well as the advantages of giving a 
real effect to the decree of the court. There is an extended 
discussion of the authorities and an argument from the 
Federal legislation which will be considered shortly. The 
court pronounces strongly in favor of the view that it is the 
right and duty of Federal courts to avail themselves of the 
local law allowing the decree of a court of equity to divest 
and vest title. 

These cases fairly represent the position of the Federal 
courts. They assert with some definiteness a power to avail 
themselves of a remedy which state legislatures have put 
into the possession of their local courts. A distinction 
might have been made between statutes of what I have 
called the American type, in which the decree of the court 
itself operates to transfer the title, and those of the Enghsh 
type, in which the statute authorizes the court to direct one 
of its officers to execute a deed by which the title shall be 
transferred. It might have been said that in the former case 
it was the state law that operated upon the Inderal decree 

1 (1899) 96 Fed. 873- 



34 THE ENFORCEMENT OF DECREES IN EQUITY 

to transfer the title to land within the limits of the state — 
that no new remedy here was being utilized by the Federal 
court. But this could not be applied to the case where the 
court has itself to act through its ofhcer. Certainly it could 
not be said that the state statute empowered a Federal 
court's Master in Chancery to make a deed to transfer title 
to land within the state. But at any rate no such distinction 
is made by the courts in the cases discussed. In Clark v. 
Smith/ for example, the practice of Federal courts in Ken- 
tucky and Tennessee to avail themselves of the state statutes 
of the respective states to transfer titles were alike approved. 
But the statute in Kentucky required execution by a com- 
missioner, while that in Tennessee gave the real effect to the 
decree itself. 

There is a rather noticeable lack of affirmative argument 
for the power claimed. What is chiefly emphasized is the 
long-continued exercise of it without question, and the 
desirability of so direct and adequate a remedy as it affords. 
Such reliance as is placed on authority is of two sorts. Some 
cases cited are cases where a Federal court of equity enforced 
a substantial right created by a state law — for example the 
Illinois law giving to a mortgagor of real estate the privilege, 
within a year of foreclosure, and to his judgment creditors 
within three months thereafter, of redeeming the premises. 
This, as Justice Harlan said in Connecticut Mutual Life 
Insurance Company v. Cushman ^ (one of the cases cited by 
the court in Langdon v. Sherwood), is a substantial right and 
constitutes a rule of property to which the circuit court must 
conform. Such were the cases of Brine v. Ins. Co.^ and 
Conn. Co. v. Cushman. These cases are not authority for 
the proposition that a state statute can empower a Federal 
court to exercise a new remedy hitherto unknown to equity, 

1 (1839) 13 Peters 195. * (1877) 96 U. S. 627. 

2 (1882) 108 U. S. 51. 



STATE OF ANGLO-AMERICAN LAW 35 

and moreover one which it required statutory enactment to 
enable the state courts to exercise. The other cases merely 
affirm the well-established principle that it is for the state 
to regulate the mode of acquisition and transfer of property 
within its limits. 

A new argument is tentatively advanced in Deck v. Whit- 
man/ based on the Federal Statute, Act March 3, 1875, 
§ 8 (substantially re-enacted as § 57 of the new Judicial 
Code), which enables a court of the United States to take 
jurisdiction in suits brought to enforce equitable claims on 
real or personal property within the jurisdiction if absent 
defendants are properly notified to appear.'- It is asked 
what effect could this statute have if Federal courts were not 
allowed to avail themselves of the state statutes which give 
to state courts of equity the right to transfer title. The 
answer is that the Federal statute gives to Federal courts of 
equity the right upon giving notice to non-resident parties 
by publication to determine the equitable rights of these 
parties as to a res within the jurisdiction of the court. Thus 
if the claim in litigation was on a contract for the convey- 
ance of land in Ohio by a resident of Ontario, the Ohio 
Federal court under the statute could upon proof of proper 

1 (1899) 96 Fed. 873, 889-890. 

^ ... " That when in any suit commenced in any circuit court of the United 
States, to enforce any legal or equitable lien thereupon, or claim to, or to remove any 
incumbrance or lien or cloud upon the title to real or personal property within the 
district where such suit is brought, one or more of the defendants therein shall not be 
an inhabitant thereof or found within the said district, or shall not voluntarily 
appear thereto, it shall be lawful for the court to make an order directing such 
absent defendant or defendants to appear, plead, answer, or demur by a day certain 
to be designated . . . (provision for methods of notice by publication and in event 
of failure of defendant to respond) ... it shall be lawful for the court to entertain 
jurisdiction and proceed to the hearing and adjudication of such suit in the same 
manner as if such absent defendant had been served with process within the said 
district; but such adjudication shall, as regards said absent defendant or defend- 
ants without appearance, affect only the property which shall have been the 
subject of the suit and under the jurisdiction of the court therein, within such 
district ..." 



36 THE ENFORCEMENT OF DECREES IN EQUITY 

publication of notice decree that the non-resident should 
convey to the complainant, and use its power of sequestra- 
tion of the land within its jurisdiction to put pressure on the 
defendant to make the conveyance decreed. Moreover, it 
could even put the complainant into possession of the prop- 
erty by a writ of assistance. But it cannot without a 
statute give him a legal title. And a legal title which will be 
readily marketable is the only complete relief. 

This objection of Deck v. Whitman that to make the Act 
of March 3, 1875, § 8, other than merely nugatory it must be 
considered as giving Federal courts power to transfer legal 
title, is unsound. The statute has a definite purpose and 
value. It enables the court to exercise its equitable powers 
when the defendant has not been personally served within 
the jurisdiction. It grants to the complainant such reme- 
dies, by way of personal pressure on the defendant to obey 
the decree of the court, as are available against such property 
of the defendant as lies within the jurisdiction of the court. 
This is a genuine enlargement of the rehef available. But 
it lacks the ultimate measure of rehef in rem. It is note- 
worthy in this connection that the Supreme Court cases do 
not even put forth this argument from the statute, and that 
it is not relied on as conclusive even in Deck v. Whitman, 
or by the editor of the third edition of Pomeroy's Equity 
Jurisprudence} In both it seems to be rather in the nature 
of a makeweight argument. 

Indeed the argument from Federal legislation is strongly 
the other way. Congress in expressly providing that in the 
cases on the common-law side of the Federal courts the prac- 
tice and forms and modes of proceeding should be those of 
the state in which the court was sitting,^ and on the other 

1 V, 25, n. 33. _ _ 

2 R. S. § 914. " The practice, pleadings, and forms and modes of proceeding m 
civil causes, other than equity and admiralty causes, in the circuit and district courts 
shall conform as near as may be to the practice, pleadings, and forms and modes of 



STATE OF ANGLO-AMERICAN LAW 37 

hand not only expressly excepting cases of equity and ad- 
miralty from this rule but expressly providing another for 
them/ gives the strongest possible basis for the inference 
that a state statute cannot enlarge the remedial powers of a 
Federal court of equity. 

And this inference from legislation is only a support to the 
fundamental analytical argument that although state legis- 
lation may create new rights which a Federal court in the 
exercise of its concurrent jurisdiction is bound to enforce^ 
for example as rules of property, state legislation cannot 
confer upon Federal courts power to grant to litigants new 
remedies. Certainly such an intention was not present in 
the minds of the legislators, who meant merely to give their 
own state court this additional power.- And it scarcely 
needs saying that whatever their intention, it is impossible 
for a state legislature to make laws to govern the procedure 
of a Federal court. 

It may be urged that, whatever the soundness or unsound- 
ness from an analytical point of view of the exercise of this 
power by Federal courts, its undoubted long-continued 
operation in actual practice has settled the matter, and no 
theoretical argument will disturb the continuance of a prac- 
tice admittedly desirable. In considering this there are 

proceeding existing at the time in like causes in the courts of record of the State 
within which such circuit or district courts are held, any rule of court to the contrary 
notwithstanding." 

1 R. S. § 913. " The forms of mesne process and the forms and modes of pro- 
ceeding in suits of equity and of admiralty and maritime jurisdiction in the circuit 
and district courts shall be according to the principles, rules, and usages which belong 
to courts of equity and of admiralty respectively, except when it is otherwise pro- 
vided by statute or by rules of court made in pursuance thereof; but the same shall 
be subject to alteration and addition by the said courts, respectively, and to regula- 
tion by the Supreme Court, by rules prescribed from time to time, to any circuit or 
district court, not inconsistent with the laws of the United States." 

Compare also §§ 915 and 916 with 917 and 918. 

2 Lessee of Shepherd v. Commissioners of Ross County, (1835) 7 Ohio 271; 
cf. also a good discussion in the dissenting opinion of McDowell, J., in Virginia T. 
& C. Steel, &c. Co. v. Harris, (1907) 151 Fed. 428. 



*^0 * "0«-3« 



38 THE ENFORCEMENT OF DECREES IN EQUITY 

three points which should be borne in mind. In the first 
place, the authorities in which the question has been actually 
raised are not numerous. The real decisions could be sup- 
ported on other grounds, in the Supreme Court cases at 
least. In other words, the question has not yet been 
thoroughly ventilated, and a reversal of the practice as 
unwarranted is still possible and to be feared. In the 
second place, the present practice is of use to complainants 
only where state statutes have given their own courts the 
power to give a real effect to their decrees. But some states 
give no such power, and in others the power granted is 
regrettably narrow. The state statutes should not consti- 
tute the measure of the Federal power to grant the remedy. 
Finally, the doubt as to the existence of the power and the 
unnecessary Hmitations on it as found in state statutes 
could be removed by Federal legislation. This is the direct 
and desirable solution. A matter of such importance ought 
not longer to be left doubtful. 



CHAPTER III 

STATE OF THE CIVIL LAW AND DEVELOPMENT OF 
THE SUBJECT IX ROMAN LAW 

The history of remedies in the other great legal system of the 
Western world, the Roman law, affords a striking parallel 
to the. development which our Anglo-American law has 
followed. Moreover it points the way to the rounding out 
of our common-law scheme of remedies by means of an 
effective enforcement of specific rehef such as is here advo- 
cated. 

The Romans were fortunate in the development of their 
law in that they escaped the dual system of courts which grew 
up in England as the courts of common law and chancery. 
In the Roman system both law and equity were administered 
by the same tribunals. Hence no distinction of procedure 
arose to mark and emphasize the administration of justice 
between different courts. 

But, as is true of primitive systems of law generally, the 
remedy which the early Roman law granted was in all cases 
pecuniary compensation. The explanation of this phe- 
nomenon of archaic law is the fact that law originally aimed 
at keeping the peace by forestalling private vengeance and 
so averting private war. This aim it sought to accomplish 
by buying off vengeance. The root idea of primitive law is 
not compensation for injury but composition for revenge. 
The so-called codes of archaic systems, from the Code of 
Hammurabi down, consist largely of extended tariffs of pe- 
cuniary composition for injuries inflicted. With the growth 
of the power of the state and the consequent respect for 
the law which found its sanction in that power, composition 



40 THE ENFORCEMENT OF DECREES IN EQUITY 

gradually became compensation. The idea of penalty grew 
into that of reparation. Restitution and prevention as a 
remedy seems in general to be a later idea in the history of 
legal thought. 

So indeed it was in the development of Roman law. 
Originally the praetor gave a direction to the judex that if the 
plaintiff's case were established the defendant should be 
condemned in a sum of money. Even in cases where the 
plaintiff had established a claim to the restitution of specific 
property of which he had been wrongfully deprived, and 
which was in the possession of the defendant, the only thing 
the judex could do for him was to condemn the defendant to 
pay the money value of the property.^ Though the defend- 
ant was the loser in the suit he remained in the possession 
of the property, and under the praetorian law when he paid 
the damages to which he was condemned he became its 
owner. Thus the plaintiff had established his right only to 
lose it, and receive merely a substituted right of pecuniary 
compensation. Obviously this was often inequitable. Any 
damages would frequently be an utterly inadequate repara- 
tion for the deprivation of the plaintiff. Indeed the jurists 
themselves recognized that in some cases, for instance the 
enslavement of the plaintiff's child, damages were not merely 
inadequate but entirely inapplicable. But specific relief, 
the only complete remedy for the difficulty, was only very 
slowly arrived at. 

Two lines of remedial contrivance ameliorated the situa- 
tion. In the first place, the praetor widened the scope of 
the direction he transmitted to the judex by somewhat 

1 Gaius, Institutes, IV, 48. " The condemnatio is always to pay a pecuniary 
value. Even when we claim a corporeal thing — an estate in land, a slave, a gar- 
ment, an article of gold or silver — the judex condemns the defendant to deliver 
not the thing itself as in the elder system but its value in money." (On " as in the 
elder system " — sicut olim fieri solebat — see note, Poste's edition of Gaius, 3d 
ed., 507. But cf. Roby, Roman Private Law, II, 344 and note.) 



STATE OF THE CIVIL LAW 4 1 

modifying the condemnatio in actions called actiones arbi- 
trariae. In these cases he allowed the judex to give the 
losing defendant an alternative; in the case of property, for 
example, either to restore the property in specie to the right- 
ful owner or, faihng that, to be condemned to pay the value 
of the property as fixed by that owner on oath before the 
judex.^ In other words, the defendant was condemned in a 
money payment only if he should disregard the order to 
make specific reparation. This very device to secure speci- 
fic rehef was re-invented in Pennsylvania in the early part 
of the nineteenth century, when a court of equity with power 
to order specific performance did not form part of the state 
legal system.^ It seems inherently probable that when the 
plaintiff fixed the value of his own property, even though 
under oath and the supervision of the judex, the amount 
thus assessed as damages would be sufficiently great to 
make the defendant in the majority of cases prefer restitu- 
tion. It seems pretty clear that the oath that the plaintiff 
took to fix the amount fairly left the matter pretty much to 
his own conscience,^ and the texts of the Digest show that 
the amount operated as a penalty.^ 

Here, then, was an indirect compulsion to secure specific 
rehef, a compulsion not without parallelism to contempt 

1 Insl., IV, 6, 31. "There are some actions again which we call arbitrary 
because their issue depends on an arbitrium or order of the judge. Here unless on 
such order the defendant satisfies the plaintiff's claim by restoring or producing the 
property, or by performing his obligation, or in a noxal action by surrendering the 
guilty slave, he ought to be condemned. . . ." 

2 Fisher, Admiralty and Equity in Pennsylvania, in Select Essays in Anglo- 
American Legal History, II, 810, at 819. 

' Digest, XII, 3, II. " The false swearing of one who swears to a claim under 
compulsion of law is a thing as to which inquiry is not lightly allowed." 

* Digest, XII, 3,1. " When anything has been made the subject of a lawsuit we 
do not suppose its value to be the greater because by means of the oath to the claim 
the order made upon the defendant may come to be for a larger amount, owing to 
his contumacy in not handing over the property; as the thing does not through this 
order become of greater value, but rather through the defendant's contumacy it is 
valued above its real worth." 



42 THE ENFORCEMENT OF DECREES IN EQUITY 

proceedings. But a still more coercive influence than the 
arbitratus de restituendo thus enforced in securing specific 
reparation was the praetorian power of denominating certain 
actions as actiones famosae, and inflicting the heavy penalty 
of infamy on one condemned in such actions. This was a 
most powerful engine for enforcing specific reparation. The 
results of being declared infamous were the loss of the three 
important rights of voting, of holding office, and of appealing 
to the praetor for actions in the courts.^ 

But these actiones famosae were always given as actiones 
arbitrariae; so if the defendant chose to make the specific 
reparation allowed him in the alternative he escaped the 
very serious consequences of the condemnation. The 
praetor gave these actiones famosae in cases involving 
fiduciary relations or transactions of good faith, such as 
partnership, guardianship, mandate (agency), and gratuitous 
deposit, and in cases of fraud and willful wrong.^ 

But even these two devices of alternative actions and 
imposition of infamia were not ample enough to satisfy the 
need of a direct and adequate remedy in all cases where 
pecuniary compensation was unsatisfactory. The penalty 
of infamia was so drastic as to be very reluctantly and 
sparingly used by the praetor,^ and was obviously often 
inappropriate to the magnitude of the original breach of duty 
on the part of the defendant. Moreover the actio arbitraria 
was clumsy and roundabout as well as ineffective where the 
defendant submitted to pay the sworn value rather than 
surrender the property of which he had wrongful possession. 

One cannot help seeing here also a parallel to our Anglo- 
American equity's indirect methods of imprisonment for 
contempt or sequestration proceedings to enforce obedience 
— drastic and ill-adapted to the varying circumstances 
under which they must be invoked. No court proceeds 

1 Digest, III, 2, I. 2 7j^_ 3 7^^.^ IV, 3, i, § 4. 



STATE OF THE CIVIL LAW 43 

to these remedies except most reluctantly. Even Lord 
Eldon, so Sir Edward Sugden told the House of Commons in 
introducing the " Contempts " Bill, " never committed an 
individual for contempt without the most anxious considera- 
tion, and the most earnest desire to avoid that painful 
extremity." ^ 

Hitherto, then, the development of the law had been, just 
as in English law, devoted to widening the scope of the 
remedy afforded for the wrong done; but the very institu- 
tion of the actio arbitraria with its provision of specific 
reparation as an alternative relief to pecuniary compensation 
served only to emphasize the inadequacy of the means in 
the hands of the judex for enforcing the remedies he pre- 
scribed. The legal relief was being halted because of the 
defective legal machinery at the disposal of the court. If 
the defendant was able and willing to pay the price, he could 
buy through payment of the cofidemnatio the power to 
frustrate the plaintiff's right to specific relief. 

This was true even in the case of the directer praetorian 
remedies of the restitutory interdicts and the restitutio in 
integrum. In form the restitutory interdict commanded the 
restitution of property to one wrongfully deprived of it; 
but this in the classical period of the Roman law amounted 
merely to a statement of the principle on which the case 
calling for the interdict should be decided. The praetor's 
order was really only preliminary to the appointment of a 
judex who decided under the ordinary formulary procedure 
whether there was in fact a situation which should be dis- 
posed of along the lines laid down in the interdict. It differs 
from the ordinary procedure before the judex only in requir- 
ing a decision based on an administrative rule laid down by 
the praetor rather than on a rule of law.- The judex was 

' 32 Hansard 370-371. 

- Cf. Sohm, Institutes of Roman Law (Ledlie's trans., 3d ed.) § 56. 



44 THE ENFORCEMENT OF DECREES IN EQUITY 

empowered here as elsewhere merely to condemn the defend- 
ant to a money compensation for his wrong, or to give him 
the option of making specific restitution by inserting the 
clausula arbitraria in the condemnatio. As Mr. Buckland 
says : ^ 

Nothing is more remarkable than the contrast between the 
strenuous language of the interdict and the comparatively feeble way 
in which it was enforced. 

The same thing was true in the other praetorian remedy of 
restitutio in integrum. By the exercise of his magisterial 
power the praetor could put an applicant back in the legal 
position he occupied prior to the execution of a transaction 
or the happening of an event entailing legal consequences. 
Thus, if one had been led to part with property by fraud or 
duress the praetor's decretum of restitutio entitled the appli- 
cant, not to the property directly, but to bring an action in 
which the formula to the judex will direct him to proceed 
on the theory that the transaction complained of had not 
occurred.^ Here again the defendant, even under the 
clausula arbitraria had the alternative of paying a money 
valuation. 

The explanation of the feebleness of the enforcing element 
in the Roman legal system must be sought in the history of 
its development. In primitive days the sanction of the law 
was but weak compared with the sanction of religion and 
honi mores as enforced by the clan or guild. Hence originated 
the wider scope allowed to self-help in archaic law. The 
successful suitor did not get his judgment executed by the 
officer of the court or state, but the court gave him permis- 
sion to execute it himself, or, by requiring a deposit from both 
parties prior to a trial of their case, secured its execution by 
the losing party on pain of forfeiture of his deposit. 

1 Buckland, Equity in Roman Law, 28. 

2 Roby, Roman Private Law, II, 226-227; cf. Buckland, Equity in Roman Law, 
36-37- 



STATE OF THE CIVIL LAW 45 

Traces of the relative weakness of the enforcing machinery 
of the law survive in all the earliest legal actions. The 
legis actio per mantis injectionem was in origin merely a 
judicially sanctioned seizure by a creditor of the person of 
his debtor in the presence of the magistrate. The seizure 
was for the purpose of making the debtor a prisoner until he 
had satisfied the creditor's claim. The regular instance of 
such claim is the judgment debt which the debtor has been 
condemned to pay by the judicium of a judex, but there 
were other debts the payment of which was similarly en- 
forced.^ The legis actio per pignoris capionem had a similar 
origin. Pignoris capio, the seizure of security, was allowed 
to a person who had certain kinds of claims against another. 
He might seek to secure satisfaction of these claims by him- 
self seizing and holding the property of his obligee until the 
claim was paid. The object of the distraint was not to satisfy 
the claim out of the property seized, but to put pressure on 
the person obliged in order to compel his payment. In both 
these actions the need felt in early days by the law as an 
agency of the administration of justice for eking out the 
newly developed power of the state by private strength is 
patent. Even in the legis actio sacramento the law does not 
rely on its unaided power to insure the performance of its 
judgment. The action got its name from its characteristic 
element, the wager made by each party as to the justice of 
his claim. It was ingeniously adapted to secure the execu- 
tion of the law's decision by an appeal to the sportsmanship 
of the litigants, but this was supplemented by a requirement 
that sureties should be given for the due performance of the 
judicium." By the time of Gaius the mode of enforcing the 
judgment of the Roman judex was by a seizure and sale of 
the whole estate of the debtor who did not satisfy its terms, 

• See Roby, Roman Private Law, II, 426-431. 
- Ibid., II, 340-344. 



46 THE ENFORCEMENT OF DECREES IN EQUITY 

but a natural execution by direct action of public officers 
was not yet developed. 

An explanation of this tardy evolution may be found in the 
division of the Roman legal machinery of the formulary 
period between the magistrate, the praetor, on the one hand, 
and the judex, a mere private citizen, on the other. The 
judex, who heard and tried the case and rendered the decision 
in accordance with the terms of his appointment by the 
praetor, had himself no magisterial power. Like the common 
law judge, he could not compel obedience from the litigants. 
He merely ascertained the right between the parties, and 
the execution of his judgment was not a matter for him.^ 
On the other hand, the praetor in the ordinary course of the 
administration of justice merely issued the formula to be 
tried by the judex — in other words he framed the issue 
between the parties after hearing their statements ; and after 
sending them to a judex for the subsequent proceedings he 
had nothing more to do with them. The praetor's magis- 
terial power of direct coercion was therefore not available 
to the judex as a private citizen.^ Refusal to restore specific 
property under the arbitrium was disobedience only to the 
judex, and his only method of enforcement was the imposition 
of the money penalty of the condemnatio, to be followed 
either by manus injectio upon the judgment debtor or, under 
the formulary period, in addition an execution on his entire 
property.^ Thus even in the classical period of Roman law 
it was possible in every case to buy the privilege of doing an 
injustice to the plaintiff, to expropriate him of his property 
at the price of a money payment. Even the clausula 
arbitraria provided only a very indirect exception and one 
that merely made the expropriation relatively expensive. 

1 Roby, II, 423. 

^ Sohm, Institutes of Roman Law (Ledlie's trans.) 227-228; and cf. 243. 

^ Girard, Manuel de droit Romain, 637. 



STATE OF THE CIVIL LAW 47 

Naboth's vineyard was ultimately always at the mercy of a 
wealthy Ahab. 

Moreover, in the great class of cases where a contract 
required an act other than restitution — for example, a 
contract to build or perform services, and similar contracts — 
the actio arbitraria was apparently not applicable. Only in 
exceptional and more or less conjectural cases was any relief 
possible where money damages were an entirely inapplicable 
remedy, for example where a woman had put herself in manu 
fiduciae causa and the person with whom she had made 
coemption refused to re-emancipate her.^ 

These difficulties arising from the narrowness of the judicial 
remedy, and ultimately from the fact that proceedings before 
the judex throughout the formulary period were not enforce- 
able by direct exercise of the magisterial power, disappeared 
when the procedure extra ordinem displaced the ordo judi- 
ciorum privatorum, with its two stages : in jure before the 
magistrate to get a judex and a direction to him as to the 
issues, and in judicio before the judex to obtain trial and 
judgment. This change began to take place early in the 
empire, at first in the cases of Jidei commissa and then 
gradually, as the superior convenience of the directer action 
came to be recognized, more and more widely throughout 
the whole field of the administration of law.- 

In the procedure extra ordinem the entire trial of a case 
took place before the magistrate himself. His powers were 
not derived from nor limited to the terms of the formula, and 
hence he could impose other than a pecuniary condcmnatio. 
He could fit the remedy to the situation calling for it.'^ With 

' See Buckland, 42-45 for this and other examples. 

- Muirhead, History of Roman Law (2d ed.) 344-345. 

' Insl., IV, 6, 32. " It is the judge's duty in delivering judgment to make 
his award as definite as is possible, whether it relate to the payment of money or 
the delivery of property, and this even when the plaintiff's claim is altogether 
unliquidated." 



48 THE ENFORCEMENT OF DECREES IN EQUITY 

the rise of the extraordinary procedure began the granting 
of specific reUef in any action where such reUef was possible. 
Moreover, the magistrate, unlike the judex, could enforce 
his judgment, and when the judgment had prescribed the 
deUvery or restitution of property he authorized his officers 
to secure this delivery or restitution, by force if necessary. 
They might themselves seize and deHver the property or 
otherwise carry the magistrate's decision into effect.^ 

Here at last a remedy appropriate to the right infringed 
has been developed. The order of the court is suited to the 
case presented and is effectively enforced in specie; and this 
enforcement is direct and not dependent upon the court's 
abihty successfully to coerce the defendant to perform. 

Another magisterial remedy characteristic of the proce- 
dure extra ordinem was missio in possessionem. Where the 
property of one owner was threatened with future damage, 
e. g., from ruined buildings or possible landslip from a 
neighboring tract, for which the owner of the latter would be 
liable under t}\QJus civile, the praetor gave to the threatened 
neighbor the right to demand from the other security against 
future damage {cautio de damno infecto) . This demand gave 
the owner of the dangerous property notice to repair or other- 
wise obviate the possibility of harm. Or he could give the 
security asked. But if he did neither the praetor would give 
missio in possessionem to the threatened proprietor, a remedy 
which entitled him to go on the land and take proper meas- 
ures, supervised by the praetorian officers, for his own pro- 
tection. 

The superiority of the remedy by way of specific relief and 
its enforcement by natural execution may have become ap- 

1 Digest, VI, I, 68. " When a man is ordered to hand over property and refuses 
to obey the judge, alleging that he is unable to hand it over, then if he has got it in 
his hands, possession is on motion transferred from him to the other party by armed 
force. ..." 



STATE OF THE CIVIL LAW 49 

parent only gradually/ but the variety of remedies at the 
disposal of the courts of the later Empire is in remarkable 
contrast with the almost single recourse of the formulary 
period. Specific relief did not displace relief by way of 
damages, but it became the normal remedy, and resort to 
substitutionary remedies was had only where specific redress 
was impossible or under the facts of a particular case 
inequitable." 

The modern Roman law, as exemplified in the countries of 
Continental Europe and Spanish America, preserves the 
advantage of this variety of means of enforcing obligations. 
Indeed so usual is natural execution in these countries, so 
thoroughly normal does it seem to them that specific repara- 
tion should be the rule in granting legal remedy and com- 
pensation by way of pecuniary damages the exception where 
specific reparation is impossible in the nature of things or for 
some special reason inexpedient — e. g. because of difficul- 
ties of administering the remedy, — that their codes treat 
natural execution with a brevity which has been somewhat 
misleading to students of the common law.^ Thus for 
example the French Code provides : 

1 142. Every undertaking to do or not to do something resolves 
itself into a right to damages and interest. 

But, as Blackwood Wright, the learned translator of the 
code, points out. 

This is only strictly true when the undertaking can only be per- 
formed personally by the party guilty of the breach of contract.^ 

This is shown by the sections immediately following: 

1 143. Nevertheless, there is a right to demand that that which 
has been done in violation of the contract may be destroyed, and the 

' Cf. Buckland, Equity in Roman Law, 45-46, and Girard, Manuel de droit 
Romain, 1070. Cuq, Institulions jiiridiques des Romains, II, 880, 883-886. 

* Cf. Girard, 1070-1071. 

^ Cf. Fry, Specific Performance, 3, 4. 

* Blackwood Wright, French Civil Code, Annotated, 205-206, note K. 



50 TEE ENFORCEMENT OF DECREES IN EQUITY 

person damaged may obtain the permission of the court to have it 
destroyed at the other party's expense without prejudice to any action 
he may have for damages and interest. 

1 144. The person to whom an obligation is due may also obtain 
the authority of the court to carry out the undertaking at the cost of 
the person who gave the contract. 

The rule, Nemo praecise cogi potest ad factum, which is 
sometimes thought to prevent any specific enforcement in 
France, means simply that no one is forced directly to do an 
act which cannot be done without his personal participation ; 
e. g., a sculptor will not be forced specifically to perform his 
contract to make a portrait bust. But if the act can as well 
be performed by the court or its officers — e. g. , transfer of 
title, destruction of buildings condemned to be destroyed — 
the court will do it without his consent and at his cost.^ 

The German provision both for specific relief and for 
natural execution is characteristically full and careful. In 
the Civil Code it is provided: 

Sec. 249. A person who is bound to make compensation shall 
bring about the condition which would have existed if the circum- 
stances making him liable to compensate had not occurred. If com- 
pensation is required to be made for injury to a person or damage to a 
thing the creditor may demand instead of restitution in kind the sum 
of money necessary to effect such restitution. 

The relative positions of specific and substitutionary relief 
in civil law are emphasized in sections 251 and 253. 

251. In so far as restitution in kind is impossible or is insufficient 
to compensate the creditor, the person hable shall compensate him in 
money. The person liable may compensate the creditor in money if 
restitution in kind is possible only through disproportionate outlay. 

253. For an injury which is not an injury to property compensa- 
tion in money may be demanded only in the cases specified by law. 

^ See Garsonnet et Cezar-Bru, Precis de Procedure {7th ed.) 521-523; Fry, 
Specific Performance, App. B; Amos, Specific Performance in French Law, 17 
Law Quart. Rev. 372. 



STATE OF THE CIVIL LAW 5 I 

For such cases see §§ 847 ff., 1300, 171 5, par. i.' In gen- 
eral, then, and subject only to certain defined exceptions, 
the primar}' remedial right under German law is a right to 
specific relief."^ And the German Code of Civil Procedure 
{Zivilprozessordnung) makes careful provision for natural 
enforcement of this remedy.^ 

Most of the provisions of the Code of Civil Procedure 
relative to execution in the cases where the obligation is to 
deliver a thing or to perform an act or refrain from perform- 
ing some act — Bk. VIII, Div. 3 — date back in their present 
formulation to the first enactment of the Code of Civil Pro- 
cedure for the German Empire in 1877. They have thus 
been subjected to an extended test in practice. 

Art. 883 reminds one forcibly of Ulpian's statement (cited 
p. 48, n. i) from the Digest. 

When the debtor ^ is bound to the deliver^' of a movable or of a 
quantity of definite movables these will be taken from him by the 
sheriff {GerichtsvoUzieher) and delivered to the creditor. If the thing 
cannot be found, the debtor is bound at the wish of the creditor to 
take an oath thus: that he does not have the thing and does not know 
where it is. The court can direct that the foregoing form of oath be 
modified according to the circumstances of the case. 

884. When the debtor is bound to the delivery of a definite 
quantity of fungible things or commercial paper, the rule of the 
foregoing Art. 883, part i, is applied. 

885. If the debtor is bound to deliver, yield up, or vacate {her- 
auszugeben, zu iiberlassen, oder zu raiimen) an immovable or a ship 
(einbewohntes Schif) the sheriff will put the debtor out of possession 
and put the creditor in. . . . 

887. If the debtor does not fulfill an obligation to an act which 
can be done by a third person, the creditor may obtain from the court 
of first instance on application authorization to have the act done at 

' German Civil Code (Wang's trans.). 
^ Cf. Schuster, Principles of German Civil Law, 184-185. 
' Zivilprozessordnung, §§ 883-890. 

* " Debtor " and " creditor " are used throughout these sections in the meaning 
given them in the civil law of the party obliged and the party entitled. 



52 THE ENFORCEMENT OF DECREES IN EQUITY 

the expense of the debtor. The creditor can apply at the same time 
to have the debtor decreed to advance the costs to which the doing of 
the act will give rise, without prejudice to the right to demand an 
additional advance if the performance occasions a greater expense. 

The foregoing provisions do not apply to an execution which has 
for its object the delivery or giving of a thing. 

888. If the performance cannot be made by a third person, and 
depends exclusively on the will of the debtor, upon the appUcation of 
the creditor the court of first instance having charge of the litigation 
shall decree that the debtor be constrained to the performance of the 
act by pecimiary penalties not exceeding 1 500 marks, or by imprison- 
ment.^ (Certain exceptions provided.) 

In this provision the complete difference of the point of 
view of the civil law from that of the common law is illus- 
trated. Coercive process by fine and imprisonment is 
applied only where the direct result cannot be achieved 
without the personal cooperation of the defendant. If 
performance by a third person can be substituted, or, as the 
next section to be quoted provides, a judgment of the court 
may be treated as equivalent in legal effect to performance^ 
these means will be adopted ; and so the recalcitrancy of the 
defendant or the court's inability for any reason to control 
him will not stand in the way of its doing justice to the 
plaintiff. The provision in § 894 is of special interest from 
the viewpoint of this paper. 

894. When the debtor is held to make a declaration of will, that 
declaration will be considered as made as soon as the decree has 
become final. 

Thus if the decree of a court is that the defendant is to 
declare his consent as to the registration of a piece of land 
in the land register, the method of transferring title to land 
in Germany,^ or to declare his consent that a given sum 

1 Cf. French Civil Law and Decisions cited by Amos in 17 Law Quart. Rev., 

377-79- 

2 Neitzel, German Land Law, 21 Harv. Law Rev., 476. 



STATE OF THE CIVIL LAW 53 

deposited in his favor may be paid over to the plaintiff, in 
either case by the mere fact that the judgment has become 
final his consent is considered as given, and without any 
action on his part the plaintiff may use the judgment to the 
same effect as if the defendant had actually made the declara- 
tion. In other words, he may become the registered owner 
of the land decreed to be transferred to him, or entitled to the 
sum on deposit.^ The parallel between this provision and 
our own legislation giving a real effect to the decrees of a 
court of equity scarcely calls for comment, but the simplic- 
ity of the provision with its wide applicability may deserve 
consideration. 

It is perhaps evident from this survey of civil-law legisla- 
tion that European experience has worked out methods of 
making specific refief the normal remedy of the legal system ; 
and of securing this relief not by the indirect and often 
unsatisfactory plan of coercing the defendant personally, but 
by methods more effective and direct : a decree of the court 
where giving legal validity to a title is the sole requirement, 
or performance by officers of the court or by the plaintiff 
himself or his agents at the expense of the defendant where- 
ever such performance will be equally effective. This 
European experience affords cogent evidence of the practi- 
cability and desirability of American legislation of the sort 
here advocated, and moreover provides, in its careful and 
systematic development of the subject, a model for the 
drafting of the American legislation. 

^ Cf. Neitzel, Specific Performance in German Law, 22 Harv. Law Rev. 161. 



CHAPTER IV 

ARGUMENT FROM PARTICULAR APPLICATIONS — THE 
NEED OF LEGISLATION AND ITS VALUE 

It has been settled law in the United States, since the leading 
case of Pennoyer v. Neff/ that where the entire object of an 
action is to determine the personal rights and obligations of 
the defendants, that is, where the suit is merely in personam, 
so-called constructive service, or substituted service by 
publication upon a non-resident, is ineffectual for any pur- 
pose. Whether process is served upon the defendant outside 
the state or sent to him, or notice is pubHshed in the state, 
such methods of service or notice are equally unavailing in 
proceedings to establish his personal liability. So long as 
the decree of a court of equity merely establishes a personal 
duty as owed by the defendant, is, in other words, the out- 
come of a proceeding in personam, and has no real operation, 
a court of equity cannot assume jurisdiction where the de- 
fendant has not been personally served with notice within 
the jurisdiction of the court. If, on the other hand, a decree 
will have a real effect, will operate in itself to convey title 
or form the basis for a conveyance by order of the court, or 
will otherwise have force independent of the act or will of the 
defendant, then jurisdiction over the subject-matter in 
dispute will give the court jurisdiction of the cause; and 
service by publication or otherwise, if properly made under 
statutory authority, will enable the court to subject the 
property or interest in property within the state which is 
the basis of the suit to the claim of the successful litigant. 

1 (1877) 95 U. S. 714. 

54 



ARGUMENT FROM PARTICULAR APPLICATIONS 55 

So long, then, as a decree operates only in personam, relief 
to the plaintiff may be defeated because the court has not 
and cannot get jurisdiction of the defendant's person. In 
the past it was the contumacious defendant who defeated 
equity's attempt to do justice by his obstinate disobedience 
to the court's decree. To-day it is more often the absentee 
defendant who defeats equity by his mere inaccessibility 
to its process, dependent as that process is for its effective- 
ness upon the control of his person. The typical case now 
is a situation where A has contracted to convey to B a tract 
of land in State X and now refuses to make conveyance. 
Though B's right to rehef is indisputable, though the state 
has entire control over the title and possession of the prop- 
erty which lies within its limits, the state court cannot grant 
B rehef if A remains outside the state, and this because of 
the purely procedural difficulty that its historical method of 
granting relief is only by compelling the defendant per- 
sonally to make the conveyance. 

The serious harm which results from clinging to the his- 
torical theory that equity can act only in personam and to 
the procedure which results therefrom is often even more than 
a delay of justice and an increase of its cost — it not infre- 
quently amounts to a direct denial of justice. 

Suppose a citizen of New Hampshire holds a contract by 
which a citizen of Quebec has agreed to convey to him a tract 
of New Hampshire land. Suppose further that the New 
Hampshire man is entitled to demand specific performance of 
the contract, but the Canadian refuses to perform and does 
not come into the jurisdiction of the New Hampshire court. 
In what way can the New Hampshire citizen get the specific 
performance which is the only adequate fulfillment of his 
right ? He may serve the Canadian with process by publi- 
cation under the New Hampshire statute, but even so can 
the New Hampshire court grant him a decree ? The decree 



56 THE ENFORCEMENT OF DECREES IN EQUITY 

would have to be that the citizen of Quebec convey the New 
Hampshire land to the citizen of New Hampshire. But this 
is a personal decree and could be rendered only upon personal 
service. The court of equity could not take jurisdiction of 
the suit since the defendant could not be properly served, 
although the property in question lies in New Hampshire. 

As the Massachusetts court in the case of Spurr v. Scoville ^ 
said: 

This suit is in personam merely, and it is wholly immaterial 
whether the land which was the subject of the complaint be or be not 
within the jurisdiction of the court. 

This case of Spurr v. Scoville presented facts very similar 
to the one just supposed, except that while the plaintiff and 
the land in question were in Massachusetts the defendant 
lived in Connecticut. The court refused to decree specific 
performance and its suggestions as to possible other remedies 
open to the plaintiff really illustrate the hardship imposed 
upon him by the limitation of the equity powers of the court. 
After pointing out that " the attachment of the defendant's 
land can avail nothing in this case, although if it were a suit 
at law the attachment might be followed up by a judgment 
and execution and the land taken in satisfaction," the court 
goes on to say that the plaintiff is, however, not without 
remedy, since he may perhaps get the defendant to come into 
Massachusetts and then serve him, and also get a writ of 
ne exeat to prevent him from escaping the process of the court 
upon its decree. Or he can sue at law and get damages for 
the defendant's breach of contract, which damages he may 
satisfy out of the land. Or, finally, he may go into Connec- 
ticut and sue for specific performance there. As to the 
unsatisfactory nature of the first two suggestions nothing 
need be said. But as to the third, not only does it impose a 

1 (1849) 3 Cush. 578. 



ARGUMENT FROM PARTICULAR APPLICATIONS S7 

hardship on the plaintiff even where it is possible, but in the 
hypothetical case previously discussed it would not be pos- 
sible. Connecticut might grant the Massachusetts plaintiff 
specific performance in a suit as to Massachusetts land if 
she had jurisdiction of the parties. But this is because under 
the United States Constitution Massachusetts would have 
to give full faith and credit to the judicial act of a sister 
state. The Quebec court would have no such guarantee of 
the effectiveness in New Hampshire of any decree it might 
make, and hence it probably would not order the defendant 
to make a conveyance. 

So unsatisfactory, indeed, was the state of the law as 
disclosed by the case of Spurr v. Scoville that the legislature 
of Massachusetts was induced thereby, so Professor Ames 
tells us,^ to pass the legislation now embodied in Mass. R. L., 
ch. 147, § 17. 

If a person who is seised or possessed of real or personal property 
or of an interest therein upon a trust express or implied, is under the 
age of 21 years, insane, out of the Commonwealth, or not amenable to 
the process of any court therein, which has equity powers, and in the 
opinion of the Supreme Judicial Court, the superior, or the probate 
court it is fit that a sale should be made thereof in order to carry into 
effect the objects of the trust, the court may order such sale, convey- 
ance, or transfer to be made, and may appoint a suitable person in the 
place of such trustee to sell, convey, or transfer the same in such 
manner as it may require. If a person so seised or possessed of an 
estate or entitled thereto upon a trust is in the jurisdiction of the 
court, he or his guardian may be ordered to make such conveyance as 
the court orders. 

Under this statute it was decided in Felch v. Hooper - 
that where a non-resident defendant had by a written con- 
tract agreed to convey Massachusetts land to a Massa- 
chusetts plaintiff, when the plaintiff had paid the considera- 
tion and had entered on the land with the defendant's 

' Ames, Cases on Trusts, 249, n. 3. - (1875) iigMass. 52. 



58 THE ENFORCEMENT OF DECREES IN EQUITY 

permission and made improvements thereon, the land was 
charged with an imphed trust in the plaintiff's favor, and 
that under the statute the court was not powerless to 
enforce the trust merely because the parties holding the 
legal title were beyond its reach. The court is careful to 
rely explicitly on the statute, saying: 

The statute gives the court power to render an efifectual decree, 
and that is enough to sustain the jurisdiction when the parties or the 
subject-matter are within its jurisdiction. 

Further illustration is afforded by the comparatively 
recent case of Silver Camp Mining Co. v. Dickert,^ a case 
coming from a state without a statute giving courts of equity 
power to give a real effect to their decrees. This was an 
action by a Montana corporation against a citizen of Utah 
to enforce the specific performance of a contract to convey 
real estate situated in Montana, and to compel the defendant 
also to make an assignment of certain dividends. Notice of 
the suit was given by publication under the Montana code 
provision, and the defendant appeared specially and chal- 
lenged the jurisdiction of the court. Judgment was given 
for the plaintiff and the defendant appealed. The Supreme 
Court held that an action for specific performance of a con- 
tract to convey real estate was one in personam ; that service 
by publication would not warrant a judgment in personam] 
and that the Montana code provision for the publication of 
summons did not abrogate the common-law rule requiring 
personal service of summons in actions in personam. Hence 
the court reversed the judgment for the plaintiff. 

These cases may serve to show how ineffective the remedy 
of specific performance may be in cases where there is no 
doubt of the existence of a right entitling the complainant 
to that remedy, but where the court lacks the power itself to 

» (1904) 31 Mont. 488. 



ARGUMENT FROM PARTICULAR APPLICATIONS 59 

transfer the title from the person who retains it wrongfully 
to the one who is equitably entitled to it. 

On the other hand, cases showing that a statute giving 
such power to the courts would be effective in enabling them 
to do justice in the premises are quite numerous. A recent 
example comes from Maryland. In Hollander v. Central 
Metal, &c. Co.,^ a Maryland corporation, having purchased 
the leasehold estate in a certain lot in the city of Baltimore, 
as present owner of the reversion in the lot, brought suit 
against non-resident defendants for the specific performance 
of a covenant contained in a lease of the lessor, her heirs 
and assigns, to convey the fee to the lessees, their heirs and 
assigns. An order of pubHcation was made against the 
defendants as non-residents and they filed a motion to 
rescind the order and quash the proceedings on the ground, 
among others, that the suit, being for the specific per- 
formance of a contract, was a suit in personam. On this 
point the court cited the Maryland statute authorizing notice 
to be given non-residents of suits in chancery respecting the 
transfer of property lying within the state, and also the 
statute authorizing the court whenever the execution of a 
deed of any kind should be decreed to appoint a trustee to 
execute it. It then continues : 

The prayer of the bill and the covenant here sought to be en- 
forced is for conveyance to the appellee of the lot described in the 
lease; and while the court could not enforce a decree requiring a non- 
resident to execute a deed for the property, its decree may be made 
effective under the provisions of the Code by the appointment of a 
trustee to convey the title of the appellants, and to that end the 
proceedings are in rem and not in personam. 

In these days of international as well as interstate business 
relations, property transactions take place without any 
regard to state or even national boundaries, and the power 

' (1908) 109 Md. 131. 



6o THE ENFORCEMENT OF DECREES IN EQUITY 

of the courts to enforce specific performance of contracts as 
to property within the territory over which they have juris- 
diction should certainly not be subjected to purely geo- 
graphic limitations for what had better be called mere 
historical prejudice rather than historical reasons. 

Another equitable remedy which needs implementing by 
the statute advocated is the removal of cloud from titles to 
property lying within the jurisdiction of the court. In the 
leading case of Hart v. Sansom/ a suit had been brought by 
Sansom and another in the Texas court to quiet their title 
to a parcel of Texas land by canceUng a claim made to the 
land by Hart, a citizen and resident of Louisiana. Hart 
was notified by publication under the appropriate provision 
of the Texas statute, and the trial court gave judgment for 
Sansom to the effect that the " deeds in the plaintiff's peti- 
tion mentioned be, and the same hereby are, annulled and 
canceled and for naught held and the cloud thereby re- 
moved." Later Hart brought ejectment in the Circuit 
Court of the United States for the Northern District of Texas 
to recover the land. That court admitted the judgment of 
the state court in evidence, instructed the jury that it had 
divested Hart of his title, and directed a verdict for Sansom. 
Hart thereupon sued out a writ of error to the United States 
Supreme Court, and the Supreme Court held that the decree 
of the Texas court was in personam merely, and so w^as of no 
effect against Hart since he had not been personally served. 
Nor was it effective against the land, since the court had no 
inherent power by the mere force of its decree to annul a 
deed or to establish a title. 

" Generally, if not universally," said Justice Gray, speaking for the 
court, " Equity jurisdiction is exercised in personam, and not in rem, 
and depends upon the control of the court over the parties, by reason 
of their presence or residence, and not upon the place where the land 

1 (1884) no U.S. 151. 



ARGUMENT FROM PARTICULAR APPLICATIONS 6 1 

lies in regard to which relief is sought. Upon a bill for the removal of 
a cloud upon title, as upon a bill for the specific performance of an 
agreement to convey, the decree, unless otherwise expressly provided 
by statute, is clearly not a judgment in rem, establishing a title in land, 
but operates in personam only, by restraining the defendant from 
asserting his claim, and directing him to deliver up his deed to be 
canceled, or to execute a release to the plaintiff. ... It would 
doubtless be within the power of the State in which the land lies to 
provide that if the defendant is not found within the jurisdiction, or 
refuses to make or to cancel a deed, this should be done in his behalf 
by a trustee appointed by the court for that purpose. But in such a 
case, as. in the ordinary exercise of its jurisdiction, a court of equity 
acts in personam, by compelling a deed to be executed or canceled by 
or in behalf of the party. It has no inherent power, by the mere force 
of its decree, to annul a deed, or to establish a title." 

An interesting point in connection with the case is that 
there was at this time a Texas statute/ enacted as early as 
1846, which provided that *' Where judgment is for the con- 
veyance of real estate or for the delivery of personal property 
the decree may pass the title to such property without any 
act to be done on the part of the party for whom the judg- 
ment is rendered." But as the Supreme Court expressly 
admitted that a statute could give real effect to the judg- 
ment, it must be intended that the Texas statute did not 
cover the situation in the principal case ; apparently because 
it in terms applied to decrees for conveyances or delivery, 
and did not cover decrees for cancellation. This appears 
from the subsequent case of Arndt v. Griggs,'- in which the 
Supreme Court was called upon to construe the Nebraska 
statute ^ giving to judgments or decrees rendered for a con- 
veyance, release, or acquittance in the Nebraska courts the 
same operation as if such conveyance, release, or acquittance 
had actually been executed by the party defendant. This 
case also originated in a suit to quiet title. The suit was 

^ Gen. Laws, § 1338. ^ (1890) 134 U. S. 316. ' See Appendix. 



62 THE ENFORCEMENT OF DECREES IN EQUITY 

brought by a citizen of Nebraska in the proper state court to 
quiet title to certain tracts of Nebraska land against claims 
made by non-residents upon the land — claims which he 
asserted were a cloud upon his title. The defendants were 
notified by publication as authorized by a Nebraska statute, 
and the state court decreed in favor of the plaintiff. The 
suit in the Supreme Court was one in ejectment between 
grantees of the parties to the original suit, and the question 
presented for decision was whether Nebraska had power 
to provide by a statute that the title to real estate within its 
limits should be settled by a suit in which the defendant, 
being a non-resident, was brought into court by pubHcation 
only. It was contended against that proposition that a 
decree rendered on service by pubhcation only was invalid 
because, the action to quiet title being a suit in equity, and 
equity acting upon the person, the person was not brought 
into court by publication. Hart v. Sansom was relied on as 
authority for these propositions. 

But Justice Brewer, speaking for the court, said: 

While these propositions are doubtless correct as statements 
respecting the general rules respecting bills to quiet title and proceed- 
ings in courts of equity, they are not applicable or controlling here. 
The question is not what a court of equity by virtue of its general 
powers and in the absence of a statute might do, but it is what juris- 
diction has a state over titles to real estate within its limits, and what 
jurisdiction may it give by statute to its own courts, to determine the 
validity and extent of the claims of non-residents to such real estate. 

Justice Brewer then examined this question on principle 
and authority, and concluded that a state had power by 
statute to provide for the adjudication of titles to property 
within its limits, even as against non-residents who are 
brought into court only by publication. The case of Hart v. 
Sansom was shown to be not inconsistent with this doctrine. 
That decision was based on the fact that no statute of Texas 



ARGUMENT FROM PARTICULAR APPLICATIONS 63 

providing for quieting title against non-residents had been 
presented. 

Here again it appears that in the absence of statute a court 
of equity may be unable to remove a cloud on the title to 
property lying within its jurisdiction, because of its inability 
to apply its only enforcing process to the person of the de- 
fendant, be he incompetent, contumacious, or beyond the 
jurisdiction of the court. Nor will a statute giving power 
to notify an absentee defendant by publication be itself 
sufficient to enable the court to transfer the title to the prop- 
erty. Such remedies as a court of equity may grant over a 
res within its control this statute may empower it to employ 
against the absentee. It may sequester the property or 
even put the complainant in possession, but neither of these 
measures constitutes an adequate remedy for the cloud, 
which impairs still the most valuable property interest of 
marketability. Complete redress requires that the court be 
able to give a clear and marketable title to the person equit- 
ably entitled to the property. On the other hand, Arndt v. 
Griggs is clear authority,^ and cases in accord are numerous 
in both federal and state courts, to the effect that a statute 
properly drawn to confer upon courts of equity the power to 
give a real effect to their decree for the removal of a cloud on 
title will enable justice to be done to the complainant — will 
give him a clear and marketable title, unclouded by the out- 
standing claim of the defendant, wherever he may be.^ 

The equitable remedy of interpleader presents still another 
case in which the proposed legislation is desirable. The 
party seeking interpleader against two or more actual or 
prospective claimants of the fund or other res which he holds 
needs to be freed from danger of suit not merely within the 

1 See especially in Arndt v. Griggs, p. 329 of the decision. 

2 Holland v. Challen, (1883) no U. S. 15; Dick i". Foraker, (1894) 155 U. S. 404; 
Ornisby f. Ottman, (1898) 85 Fed. 492; Knudson v. Litchfield, (1893) 87 la. in; 
Short V. Caldwell, (1891) 155 Mass. 57. 



64 THE ENFORCEMENT OF DECREES IN EQUITY 

jurisdiction where he holds the res, but also wherever claim- 
ants asserting legal title to the res may harass him with 
suits. 

In the case of Gary v. Northwestern Masonic Aid Associ- 
ation/ the plaintiff, Mrs. J. Gary, a resident of Iowa, was 
the beneficiary of a policy on the life of her husband. But 
shortly before the latter's death she had assigned and de- 
livered the policy to one E. H. Gary, a resident of Illinois. 
Later she repudiated the assignment on the ground that it 
was obtained by fraud, and notified the insurance company 
to pay the money to her. E. H. Gary had also had the 
company notified of his possession of the certificate and of 
his claim. The insurance company then commenced an 
action in Illinois in the nature of an interpleader, deposited 
the full amount due on the policy, and asked that Mrs. Gary 
and E. H. Gary be required to answer the bill and interplead. 
Mrs. Gary was personally notified in Iowa, and E. H. Gary 
served in Illinois. Mrs. Gary made no appearance, and a 
formal default was filed against her in the Illinois court and a 
decree entered awarding the deposit to E. H. Gary. There- 
upon Mrs. Gary sued the insurance company in Iowa and it 
set up the proceedings in the Illinois court. On motion of 
the plaintiff this was stricken from the company's answer on 
the ground that the decree was void for want of jurisdiction 
over the plaintiff. It was held on appeal that this ruling of 
the court was sound. The court held that the bill of inter- 
pleader and the decree based thereon did not constitute a 
proceeding in rem but a mere attempt to adjudicate a mere 
personal right to a money demand. 

After an elaborate argument the Supreme Court of Ohio 
reached the same conclusion in a case quite similar in its 
facts.^ The applicant for interpleader was a Pennsylvania 

1 (1891) 50 N. W. 27 (la.) not officially reported. 
^ Cross V. Armstrong, (1887) 44 Ohio St., 613. 



ARGUMENT FROM PARTICULAR APPLICATIONS 65 

insurance company; the policy was a contract made and to 
be performed in Pennsylvania; the claimants were both 
residents of Ohio. The company paid the money into court 
in Pennsylvania and the claimants were properly notified 
under the provisions of the Pennsylvania law for serving 
notice on non-residents. The widow appeared and was 
awarded the fund. The other claimant, the administrator 
of the decedent's estate, then sued in Ohio. It was urged on 
behalf of the company that by the judgment of the Penn- 
sylvania court the matter was res adjudicata; that the pro- 
ceeding had become one in rem when the fund owed by the 
company had been put in possession of the court. But the 
Ohio court rejected the argument on the ground that the 
proceeding was one of interpleader and therefore in personam. 
Since, then, here as elsewhere a statute which authorizes a 
court of equity to deal with absent defendants is, although a 
necessary element in the rehef, not by itself sufficient, re- 
course must be had to a statute enabling the court to give a 
real effect to its decree. Here, again, the interstate character 
of a great part of our business relations, a matter of which 
insurance is of course a notable instance, makes legislation to 
enable the settlement of title, not merely to real property but 
to funds of money, in a single suit a highly necessary reform. 
It should be possible for the innocent holder of such a fund to 
be able to pay it into court, and then by published notice 
summon all parties interested to participate in an adjudication 
as to the title to the fund, which should be conclusive upon 
all claimants wherever they are resident. The same doctrine 
should be extended, and is in practice extended, to the cases 
of creditors' suits, in which, under the doctrine of rewarding 
the diligent creditor, equity treats the assets of the debtor as 
a fund in court for distribution, and after proper publication 
to give all who have claims against the fund the opportunity 
to come in and make their claims, bars for laches those who 



66 THE ENFORCEMENT OF DECREES IN EQUITY 

fail to come. This is really a proceeding in rem} A statute 
which would settle the vexed question of the jurisdiction of 
personal liability by giving the court having jurisdiction over 
the debtor or over the debtor's property authority to deal 
with claims of creditors against him on the lines suggested 
by the practice in creditors' suits, is highly desirable.^ 

These illustrations make no pretense of being exhaustive. 
They might be supplemented by cases showing the incon- 
venience arising from the limitation on equity powers where 
the person to be coerced into action by the decree is an infant, 
a feme covert, or non compos mentis. But illustration here 
seems unnecessary. So generally has the need of granting 
equity power to deal with titles held by infant, lunatic, or 
feme covert trustees been acknowledged that probably 
statutes conferring such power are now universal. They 
date back to 1708 (Stat. 7 Anne, c. 19) in the case of infants, 
and 1 73 1 (Stat. 4 Geo. II, c. 10) in the case of trustees 
non compos mentis.^ 

It should be borne in mind that the principle involved in 
these early statutes is precisely the one under discussion in 
this essay, and their early date is another indication of the 
early recognition of the necessity of supplementing a juris- 
diction purely in personam by one more consonant with the 
nature of the rights an equity court was securing. Indeed so 
early was this recognition made in these cases of trustees 
that some courts in America have regarded the jurisdiction 
as a part of the ordinary jurisdiction of equity and not as 
dependent upon a statute.'* 

1 Kerr v. Blodgett, (1871) 48 N. Y. 62, 66-67; Samples v. Bank, (1873) 21 Fed. 
Cases, No. 12278. Cf. discussions of Chancellor Walworth in Hallett v. Hallett, 
(1829) 2 Paige 15 at 22, and Chancellor Bland in Williamson v. Wilson, i Bland 
(Md.) (1826), 418 at 440. Cf. Smith v. Bank of New England, (1897) 69 N. H. 
254, a case of liability of trustees to beneficiaries. 

=^ Cf. Dicey, Conflict of Laws (2d ed.), 310. 

3 See Ames, Cases on Trusts, 217-218, notes. Cf. Mass. Stat. 1783, c. 32, § 4. 

^ Cf. Glen V. Williams, (1882) 60 Md. 93, 1 19-120, and Cal. cases cited, 23 and 24. 



ARGUMENT FROM PARTICULAR APPLICATIONS 67 

This attitude on the part of the courts with respect to 
equity's powers to act in rem even in the absence of statute 
is, as a matter of fact, rather wide-spread. It furnishes an 
explanation for the practice of Federal courts to insist on a 
power to avail themselves of state statutes conferring the 
power on the state courts. At bottom the attitude of the 
Federal courts really seems to be that the statutory powers 
have become absorbed into the main body of equity juris- 
diction. This doctrine is frankly avowed by some state 
courts. Thus in the recent case of Tennant's Heirs v. 
Fretts,^ the court asserted its power, on general equitable 
principles and independent of statute, to cancel a cloud on 
West Virginia land against a claim by a citizen of Penn- 
sylvania who had not appeared and had merely been notified 
by publication under the West Virginia statute. The mod- 
ern attitude is coming to be that reflected in the bold lan- 
guage of the Wisconsin court in the case of McMillan v. 
Barber Asphalt Paving Co. : - 

In the early stages of equity jurisprudence decrees were enforced 
only in personam. This rule has long since given way to the para- 
mount rule that equity may in all cases so frame its decrees as to 
make them effective to do equity, and now the forms of equitable 
relief are as various as the various actions investigated and regulated 
in equity. 

Yet while this is the attitude taken by a growing number of 
courts, there can be no doubt that the limitation to coercive 
action on the defendant as a means of securing performance 
of its decrees has been deeply ingrained in the minds of 
equity judges. This is clear from their sparing use of any 
other method of enforcement, even although it does not 
involve any question of title. A striking example is the 
remedy by mandatory injunction. Equity courts have, of 
course, the right to avail themselves of the physical powers 

1 (1910) 67 W. Va. 569. - (191 2) 151 Wis. 48. 



68 THE ENFORCEMENT OF DECREES IN EQUITY 

of the state just as freely as courts of common law. Indeed 
to-day the court of equity and the court of common law are 
one court, with one set of executive officers at its command. 
For example its jurisdiction itself to repair a tort specifically 
where this is physically possible is entirely clear, and was 
exercised early in the eighteenth century.^ Yet for all that 
courts have ordered defendants to repair the tort themselves, 
or have otherwise sought the redress to be granted to the 
plaintiff by the old indirect method of putting pressure on 
the defendant. Compare, for example, the cases of Vane 
V. Lord Barnard ^ and Lane v. Newdigate.^ In the former, 
decided by Lord Cowper in 1716, the defendant, who, on the 
marriage of the plaintiff, his son, had settled Raby Castle on 
himself for Hfe, and remainder to his son for life, in a fit of 
anger against his son practically dismantled the castle. The 
court not only enjoined further committing of waste but also 
decreed that the castle be repaired and appointed a master to 
see it done at the expense of the defendant. But in Lane v. 
Newdigate, a case in which the defendant had, in violation 
of a right of the plaintiff, lowered the banks of a canal and 
let a stopgate fall into disrepair, both the prayer of the bill 
and the injunction of the Chancellor were directed to secur- 
ing action by the defendant. This was a case of specific 
performance of a contract right, but the principle on which 
the court of equity gives relief in case of affirmative contract 
is precisely the same on which equity grants specific repara- 
tion of a tort. Where the mandatory injunction to the 
defendant is equally effective with direct action by the court, 
of course no objection need be made to it; but the manda- 
tory injunction is sparingly and reluctantly used by the 
courts, in part at least just because its form suggests the 
practical difficulty of securing satisfactory performance by an 
unwilling and coerced defendant. This is really a part of the 

1 Vane v. Lord Barnard, (1716) 2 Vern. 738. '^ (1804) 10 Vesey 192. 



ARGUMENT FROM PARTICULAR APPLICATIONS 69 

basis for the objection urged by many courts against the 
specific enforcement of many affirmative contracts, for 
example, contracts to build or to repair.^ The authorities 
on this topic are in a state of considerable uncertainty, and 
the conflict is due in large part to the reluctance on the part 
of the courts to coerce performance by the defendant person- 
ally.^ Of course in any case supervision by the court is a 
more or less difficult piece of administrative work, for which 
the machinery of our legal system is not well adapted. 
Moreover, it may take so much time and occupy so much of 
the attention of the court or its officers as to lead to delay in 
the court's other work. But where the remedy of the plain- 
tiff at law is clearly inadequate, and so the court would on 
principle be willing to grant specific performance if it were 
not for the practical difficulties in the way of enforcement, a 
recognition of the principle that specific enforcement may in 
very many cases be secured independent of the will or action 
of the defendant would enable the courts to do justice in 
numerous situations where they now feel constrained to 
decline to act, and so to leave the plaintiff to the inadequate 
substitutionary remedy. Where the terms of the contract 
are definite it is usually sufficient performance for the plain- 
tiff's remedy that he be allowed to have the work performed 
according to the plans by another contractor. The court 
could, if necessary,^ appoint an expert to estimate the reason- 
able cost and decree that it be either met by the defendant or 
taken out of his property. If the work is of such magnitude 
and cost that it would be fairer to the plaintiff" to have it 
paid for on the completion of successive stages, this could be 
done. Such supervision as is needed for this, also of course 

" Lucas V. Commerford, (1790) 3 Brown 166; Rayncr v. Stone, (1762) 2 Eden 
128 and note; Beck v. Allison, (1874) 56 N. Y. 366. 

2 For American cases see Pomeroy, Equity Jurispnidcnrc, § 1402; for English 
cases and good discussion see Fry, Specific Performaucc (5th ed.) §§ 98-109. 

^ Cf. Jones V. Parker, (1895) 163 Mass. 564. 



yo THE ENFORCEMENT OF DECREES IN EQUITY 

at the expense of the defendant, would be less difficult and 
less time-consuming than the supervision from which the 
court shrinks. It would go far toward reducing the cases 
where a court could not secure specific performance to those 
where the performance is of so individual a character that 
only the voluntary act of the defendant will render it. Of 
course here again not only will such legislation as is advo- 
cated extend the field in which the specific relief can be 
granted where the court has jurisdiction of the parties as well 
as the property, but it is the only way in which such relief 
can be secured against an absentee defendant, where manda- 
tory injunction and contempt process will be unavailing. 

It is a matter for congratulation that the new Equity 
Rule IX of the United States Supreme Court expressly calls 
attention to this method of acting through third parties at the 
cost of the disobedient defendant. Its final sentence runs: 

If a mandatory order, injunction, or decree for the specific per- 
formance of any act or contract be not complied with, the court or a 
judge, beside, or instead of, proceedings against the disobedient party 
for a contempt or sequestration, may by order direct that the act 
required to be done be done, so far as practicable, by some other per- 
son appointed by the court or judge at the cost of the disobedient 
party, and the act when so done shall have like effect as if done by 
him. 

While no legislation is necessary to enable courts to exercise 
this power, since it is a power possessed by all courts, still the 
definite recognition by our highest court of the existence of a 
power almost fallen into disuse will doubtless have a salutary 
effect. Indeed it might be that a statutory enactment 
granting this power in express terms to courts of equitable 
jurisdiction would serve the same useful purpose even more 
effectively. 



CHAPTER V 

SKETCH OF THE DEVELOPMENT OF EQUITABLE 
PROCEDURE IN REM 

The attempt has been made to show that other legal systems 
have reached the end advocated here for American equity, 
and that the same feeling of need has induced legislation in 
most of our jurisdictions. But it may further be established 
that the whole history of the development of equity proce- 
dure from the beginning has tended in this direction. Con- 
fined at first to proceeding against the person, equity has 
increasingly endeavored to attain a more direct enforcement 
of its decrees, and one less subject to the accident of control 
over the person of the defendant. 

The method of execution which is characteristic of equity 
— its operation by pressure brought to bear on the person 
against whom its decree has issued . — is, in the words of 
Professor Langdell, a " historical accident," a result of the 
division of the administration of justice between two sets of 
courts, the courts of common law and of chancery. The 
explanation is twofold. Chancery adopted its coercive 
process to correct a grave defect in the process of the courts 
of common law. It was confined to this process by the 
jealousy of these same courts. 

Originally the Chancellor administered the residuary 
justice resident in the King and not delegated by him to his 
courts of common law. But before the court of the Chan- 
cellor had assumed any definite form or organization the 
common-law courts had already developed a procedure and 
a theory of procedure which seriously hampered their power 
to do full justice in many situations. As has already been 



72 THE ENFORCEMENT OF DECREES IN EQUITY 

adverted to, the courts of common law were unwilling to 
compel a defendant to redress directly a wrong he had done 
to the plaintiff. In archaic law, courts are curiously reluc- 
tant to put pressure directly upon a litigant. They confine 
themselves to the indirect pressure of seizing his property to 
satisfy their judgments from it. This reluctance to coerce 
the individual perhaps betrays the lingering fear that such 
coercion might provoke from the defendant thus goaded to 
the last extremity a violence which would defeat the primary 
purpose of the law — the maintenance of the peace. 

It is true that specific relief was not unknown to English 
law even prior to its administration by courts of chancery. 
Glanvill lays it down as a general principle that : 

It is a consequence which naturally results from acknowledging 
a fact in the King's court in the presence of the King or his justices, 
or undertaking to do any particular act, that the party should be 
compelled to abide by or perform it. The party who has broken the 
concord shall be amerced to the King, and shall be safely attached 
until he find good security that he will from henceforth keep the con- 
cord by adhering to its terms if possible, or will otherwise make his 
adversary a reasonable recompense.^ 

Indeed, as Pollock and Maitland point out,- the original 
weapons of the courts were punishment, the imposition of a 
fixed hot where the plaintiff's object was really vengeance, and 
specific restoration or performance where he has been 
" deforced of something which he claims." 

" This thing," runs one passage, " may be land or services or an 
advowson or a chattel or a certain sum of money, but in any case it is 
a thing unjustly detained from him. Or, maybe he demands that a 
final concord or a covenant may be observed and performed, or that 
an account may be rendered, or that a nuisance may be abated, or 
that (for sometimes our King's court will do curiously modem things) 
a forester may be appointed to prevent a doweress from committing 

* Glanvill (Beames' transl.) Book VIII, c. 5, 205. 

2 Pollock & Maitland, History of Etiglish Law, II, 523, 595 



EQUITABLE PROCEDURE IN REM 73 

waste. Even the feoffor who fails in his duty of warranting his 
feoffee's title is not condemned to pay damages in money; he has to 
give equivalent land. No one of the oldest group of actions is an 
action for damages." Again: " We must repeat once more that the 
oldest actions of the common law aim for the more part not at dam- 
ages but at what we call specific relief. By far the greater number of 
the judgments that are given in favor of plaintiffs are judgments which 
award them seisin of land, and these judgments are executed by writs 
that order the sheriff to deliver seisin. But even when the source of 
the action is in our eyes a contractual obligation the law tries its best 
to give specific relief. Thus if a lord is bound to acquit a tenant from 
a claim for suit of court, the judgment may enjoin him to perform this 
duty and may bid the sheriff distrain him into performing it from time 
to time (n. Note Book, pi. 837). In Glanvill's day the defendant in 
an action on a fine could be compelled to give security that for the 
future he would observe his pact. (n. Glanvill, viii, 5). The history 
of Covenant seems to show that the judgment for specific performance 
{guod conventio teneatur) is at least as old as an award of damages for 
breach of contract, (n. P. & M., 11, 216-220). We may find a local 
court decreeing that a rudder is to be made in accordance with an 
agreement, (n. The Court Baron, Selden Soc. p. 115) and even that 
one man is to serve another. (Select Pleas in Manorial Courts, p. 
I57-) " 

But while it is true that the action for purely compensatory 
damages was only gradually developed, a pecuniary liability 
imposed by way of penalty was the original weapon of the 
English, as indeed of every archaic system. The bot, or 
compensation for an injury done, was fixed on another 
principle than that of compensation — the principle of buy- 
ing off the vengeance of the injured party or his kinsfolk. 
But in the English as in other legal systems the idea of com- 
pensation developed gradually out of this originally more or 
less arbitrary tariff of compositions. Compensatory dam- 
ages commensurate with the injury done came into the com- 
mon law apparently at first as supplementary to specific 
relief in the assize of novel disseisin where a disseisee has been 
deprived not only of his land, to which he can of course be 



74 THE ENFORCEMENT OF DECREES IN EQUITY 

restored, but also of its perishable fruits, for which it may 
well be only a substituted pecuniary compensation is possible.^ 
Once the device of assessment of damages by the recognitors 
in the assize was invented, the pecuniary remedy, now com- 
pensatory, began to encroach on the field of more specific 
relief besides holding its own in the delictual field, where the 
money penalty had prevailed from the first. Then its 
association with the great and prolific action of trespass as 
the appropriate relief where one to the plaintiff's damage had 
broken the King's peace still more widely extended its scope 
of operation; and as the enforcement of obligations began, 
with the rise of a commercial and industrial civilization, to 
take the central place in the law once held by the enforce- 
ment of purely real rights the triumph of the substitutional 
remedy in the courts of common law became practically 
complete. The law, concerning itself more and. more with 
merchandise bought or sold for money, with things having a 
definite and calculable exchange value, came to conceive that 
the money compensation, which was an entirely adequate 
remedy in the common case, and in many cases the only 
possible one when once the wrong complained of had been 
committed, was the only remedy available for their use 
except in the narrow field of actions for the recovery of 
property to which the complainant has a legal right of 
immediate possession, and the prerogative writ of man- 
damus. 

Whatever the reason for the displacement of any general 
exercise of the remedy of specific relief by the substitutional 
remedy of pecuniary damages, the change early took place, 
and with it developed the common-law theory of procedure 
which led the courts to refuse to exercise any coercive control 
over the person of the litigants. Even the imprisonment of a 
party was ordered only by way of satisfaction of a judgment 

1 Pollock & Maitland, History oj English Law, II, 523 et seq. 



EQUITABLE PROCEDURE IN REM 75 

against him, and not at all to compel his obedience to the 
decision of the court. 

But the defects of the prevailing common-law remedy were 
not only due to the fact that damages are often wholly con- 
jectural and often entirely unfair regarded as an equivalent 
where the subject matter in dispute is of a unique character, 
but also because the machinery of enforcement at the dis- 
posal of the court was entirely ineffective wherever the 
defendant had no property to levy upon, or had successfully 
concealed it from the sheriff, or where the property was of a 
sort such as choses in action, which were not amenable to the 
sheriff's process. A method which would remedy this defect 
of the common-law power to do justice lay ready to the 
Chancellor's hand in the procedure of the canon law — a 
procedure, too, with which the Chancellor, himself in the 
early history of the ofhce almost invariably a cleric,^ was 
quite familiar. The direct pressure and control which the 
courts of common law would not attempt to exercise was 
constantly exercised by the Church courts upon a defendant 
pro animae salute. How largely the procedure of the courts 
of equity was borrowed from the canon law has been shown 
in some detail by Professor Langdell in his Summary of 
Equity Pleading.^ But in no particular case were the courts 
of equity more indebted than in the procedure by which 
they were enabled to compel obedience to their decrees by 
putting pressure directly upon the person of a recalcitrant 
defendant to do what they had decided he ought to do. 
From the process of Chancery the means of evasion success- 
fully practiced by defendants against the sheriff afforded no 
escape. It was useless to conceal property or to convert it 
into kinds upon which the sheriff could not lay hands. 

' Cf. Kerly, Historical Sketch of the Equitable Jurisdiction, ch. vi, 94-95; 
Spence, I, 340. 

* Cf. Kerly, Historical Sketch of the Equitable Jurisdiction, 37-3S. 



76 THE ENFORCEMENT OF DECREES IN EQUITY 

Moreover, compulsory process against the defendant enabled 
a court of chancery to protect the plaintiff's right by requiring 
a specific performance from the defendant of his correlative 
duty. 

This power of enforcement through direct coercion was 
not, as has been said, unknown to English law, but it was 
without doubt introduced into the procedure of the Chancel- 
lor's court from the courts of the Church, which had main- 
tained in its matured and developed form the remedy which 
they had in their turn received from the Roman law. These 
ecclesiastical courts had, of course, prior to the development 
of the jurisdiction of the Chancellor as an administrator of 
justice already lost their power as temporal courts;^ but 
they still had power to compel specific performance of duties 
through inflicting the spiritual punishment of excommunica- 
tion on a contumacious defendant, and if this did not secure 
obedience they could procure from the King a writ de excom- 
municato capiendo under which the sheriff would arrest and 
imprison the obdurate offender in the county jail. This 
process is strikingly similar to that employed by the Chancel- 
lor to secure obedience to his decrees. 

Punishment for contempt of the King's writ was the 
original and characteristic feature of the process of the court 
of Chancery, and indeed it was only against the vehement 
opposition of the courts of law that any other means of secur- 
ing the execution of the chancery court's decrees than this 
imprisonment for contempt was allowed. In the famous 
case of J. R. v. M. P. et al., Prisot, C. J., laid it down roundly 

1 Langdell, Summary of Equity Pleading, 35 et seq. Cf. also Gilbert, Forum 
Romanum, ch. 2 and 3; Spence, Equitable Jurisdiction, I, 344; Burroughs M. R. 
1625-1639, Legal Judicature in Chancery, 151, citing a MS. note of Sir Julius Caesar 
endorsed on a decree of 31 H. VIII, " I find by perusal of the Records of the 
Chancery remaining in the Rolls . . . the Bills were filed and the Decrees written 
on the backs of the said Bills in Latin and in form as above recited according to 
the Proceedings in the Civil and Canon Laws with some small difference." 



EQUITABLE PROCEDURE IN REM 77 

that to execute its decree against a defendant " the chancery 
can do nothing but order him to prison, there to remain until 
he will obey, and this is all that court can do." ^ 

But the very elaboration of this contempt process to which 
Chancery was thus confined by the jealousy of the courts of 
common law,- is in itself clear evidence of its inefficiency as a 
means of securing the performance of the court's decrees or 
even an appearance to answer its subpoena. In West's 
Symboleography (i6i i) we have preserved for us the practice 
of Chancery in the time of EUzabeth and James I."* This 
discloses the repeated efforts which it might require to compel 
a defendant to obey the order of the Chancellor. If he failed 
to obey the decree as communicated to him by service on him 
of a writ de Executione judicii,^ a writ of attachment first 
issued against his person commanding the sheriff to bring 
him before the Chancellor to answer for his contempt."^ 
But if the sheriff returned that the defendant was not to be 
found in his baihwick Chancery then proceeded to an attach- 
ment with proclamation, which differs from the first process 
in that the sheriff* had now to make public proclamation 
throughout the bailiwick " that the defendant shall appear 
on pain of his allegiance to answer concerning the contempt."*^ 
Apparently even this did not always intimidate the defend- 
ant, for in default of his appearance on that process a com- 
mission of rebellion " issueth to such commissioners as the 
plaintiff nameth, ordering them to attach the defendant 
wherever he is found in the kingdom as a rebel and contemner 
of our law." ^ 

1 Y. B. 37 H. VI, fol. 13, pi. 3 (Ames, Cases in Equity, I, i); cf. Y. B. 27 H. 
VIII, fol. 15, pi. 6; Equity Cases Abr. 130, pi. 3 and note; Cadell v. Smith, (1791) 
3 Swanston, 308 and note. 

^ On this point see further Coke, 2 Insl. 553, 4 Insl. 83; and for examples, Y. B. 
2 Rich. Ill, 9; Brooke, Abr. Conscience, 16, 22. 

' For the practice of a somewhat later period — not much altered — see Powell's 
AUourney's Academy (1647) Decrees, 202-204. 

* West, Part II, 189. ^ Ibid., Part II, 184, 189. ^ Ibid., 184. ' Ibid., 185. 



78 THE ENFORCEMENT OF DECREES IN EQUITY 

At this point West shows the first trace of a process other 
than one directly against the person of the defendant. 

"If," he says, " the party defendant cannot be taken by virtue of 
the same commission, then if the plaintiff's suit be for title of land the 
court sometimes grants an injunction to the plaintiff for possession till 
the defendant hath appeared and answered and satisfied his con- 
tempt ... for the proceeding in this court is by orders, injunctions, 
and decrees, which if the defendant resist, his punishment for this 
resistance and for his contempt in not appearing is imprisonment in 
the Fleet, as is said during the Lord Chancellor or Lord Keeper their 
pleasure, or until he will obey and perform the order and decree of the 
same court." ' 

Thus far the process is the same to secure an appearance 
under the subpoena or a performance of the decree. But 
in the latter case equity had by this time developed a second 
method of relief not dependent upon the coercion of the 
defendant. 

"If," West tells us, " the decree be in a suit for land and the 
defendant abide all the said process of contempt and still detain the 
possession of the land from the plaintiff contrary to the said decree: 
then upon a motion thereof made in the court a commission is usually 
granted to the sheriff and some others near adjoining to the lands in 
question to put the plaintiff in possession, and to keep him in posses- 
sion according to the said decree." ^ 

Of course the granting of possession, although a remedy, 
was an incomplete one to the plaintiff, who was still without 
legal title, but a secondary purpose was also served by this 
action of the court. It put some additional pressure on the 
defendant to perform the decree. 

So far as appears from West nothing further was left for 
Chancery to do in the way of effort to catch the defendant; 
but it appears from other sources that the court had not yet 

1 West, 1856, 186. This process was later abolished. Powell, AUomney's 
Academy, 34. 

2 West, 189; cf. Spence, I, 392. Cf. also Earl of Pembroke v. Ap Hoell, (1566) 
Monro, Ada Cancellariae, 368. 



EQUITABLE PROCEDURE IN REM 79 

exhausted its methods of getting hold of the dehnquent. 
The court issued a fourth order, this time to its own serjeant- 
at-arms — by the Chancellor himself under the Great Seal — 
commanding him to effect the arrest.^ If the Serjeant was 
successful - the defendant was finally lodged in the Fleet. 

This imprisonment for contempt was of dift'ering degrees of 
strictness. Apparently the practice of different chancellors 
varied. Under some the confinement was not at all close; 
for instance a physician was allowed to practice his profession 
outside the prison, although under the surveillance of a 
keeper.^ However, the general opinion seems to have been 
tliat greater severity was necessary to make the process 
effective in securing performance of the Chancellor's decree. 
Thus Powell, writing in 1647, says: 

Imprisonment for breach of a decree is in the nature of an execu- 
tion, and therefore the custody ought to be strait and the party not to 
have any liberty to go abroad but by special license of the Lord Keeper 
or Lord Chancellor being. But no close imprisonment is to be but by 
express order for wilful and extraordinary contempt and disobedience.* 

But instances are not lacking of much severer measures 
being resorted to in order to coerce obedience from the stub- 
bom seventeenth-century Enghshman. Thus in 1598 after 
one Walter had been already subjected in vain to close im- 
prisonment for some time, the court ordered him to perform 
within a fortnight " which if he shall not do . . . then his 
Lordship mindeth without further delay not only to shut the 
defendant close prisoner but also to lay as many irons on him 
as he may bear." ^ Again in 1600 one Arundel was ordered 

' See Adams, Equity (ist ed.), 325; cf. Monro, Acta Caiicellariae, 259. 

^ His commission was often diflBcult and even dangerous of performance. Cf. 
Monro, loc. cit., 757, 750, 172, 321. 

' Spence, I, 389-392. 

* Powell, Attourneys Academy, 202. 

' Clerk V. Walter, Monro 718; and cf. Spence, I, 389-392 and cases cited; also 
693. 



8o THE ENFORCEMENT OF DECREES IN EQUITY 

shut up close prisoner till he should perform the decree, and 
four months later a further order issued that if he did not 
perform by the end of the current term he should be fined for 
persisting in his contempt.^ And in the same year another 
defendant was ordered not merely into confinement but to 
pay at once a fine of £20; then if he should not perform by 
the end of the term another fine of £20, and if that did not 
make him perform by the end of the next term a fine of £40, 
" and so every term after a double fine." ^ 

These cases of fines illustrate the tendency of the court to 
seek a more effective method of compulsion by attacking the 
defendant's property interests and thus coercing him into 
obedience.^ The first step in this direction has already been 
pointed out,^ i. e., the writ of assistance devised (or perhaps 
adapted from the praetorian possessory interdict) in Eliza- 
beth's reign and used in the discretion of the court at first 
for the purpose of giving interim possession of property in 
dispute to the plaintiff until the defendant should answer, 
and later in a suit for the possession of land to put the success- 
ful party in possession and maintain him there. The writ of 
assistance (now superseded in England by the substantially 
similar writ of possession) is still a useful weapon of American 
equity.^ While its primary purpose is an indirect compul- 
sion of the defendant to make him perform the decree, it 
provides at the same time for a certain measure of specific 
execution of the decree, independent of the act of the defend- 
ant — all the rights and powers of the owner in possession 

1 Arundel v. Arundel, Monro 741. 

2 Awbrey v. George, Monro 757. Mr. Buckland {Equily in Roman Law, 40) 
compares this with the Roman-Law actio arbitraria; cf. p. 41. 

3 Cf. German Zivilprozessordnung, § 888, cited ante, p. 52. Amos, Specific 
Performance in French Law, 17 Law Quart. Rev., 372. 

* Ante, p. 78. Cf. a later date assigned to this writ (temp. Jac. I) by Lord 
Hardwicke in Penn v. Lord Baltimore, (1750) i Yes. Sen. 443, 54- 

6 See Equity Rules of U. S. Supreme Court, Rule 9; cf. Root v. Woolworth, (1893) 
150 U. S. 401, 410. 



EQUITABLE PROCEDURE IN REM 8 I 

except the full measure of the power of disposition. Unob- 
trusively but none the less surely equity here had made a 
decided advance in its ability to render rehef to the plaintiff. 
It is no longer absolutely dependent on its ability to coerce 
the defendant. 

An even greater advance in the same direction was made 
in the invention of the writ of sequestration. This was a 
writ directing commissioners to sequester the personal prop- 
erty of the defendant and the rents and profits of his real 
property, and keep him from the enjoyment of this property 
until he cleared his contempt.^ It was used whether the 
contempt was in failing to appear and answer the bill or in 
failing to obey the decree. It could be had both when the 
defendant could not be found by the serjeant-at-arms and 
when, having been found, he refused to obey even after being 
committed to prison for his contempt." At first it seems that 
the only property subject to sequestration was property 
involved in the suit, but it came later to be extended to any 
property of the person in contempt. North, in his life of 
Lord Keeper Guildford, cites a case in Lord Coventry's 
time (1625-1640): 

" When Sir John Reed lay in the Fleet (with £10,000 in an iron cash 
chest in his chamber) for disobedience of a decree, and would not sub- 
mit and pay the duty. This being presented to the Lord Keeper as a 
great contempt and affront upon the court, he authorized men to go 
and break up his iron chest and pay the duty and costs and leave the 
rest to him and discharge his commitment. From thence," says North, 
" came sequestrations, which now are so established as the run of 
course after all other process fails and is but in the nature of a grand 
distress, the best process at a common law after a summons such as a 
subpoena is. What need," continues he, " all that grievance and 
delay of the intervening process ? " ^ 

^ Gilbert, Forum Romanum, 86. 

' Ferryman v. Dinham, (1641) i Ch. R. 152. 

' Cited in Maddock's Equity Practice (ist ed.) II, 164. 



82 THE ENFORCEMENT OF DECREES IN EQUITY 

North seems to be mistaken as to the date of the origin of 
the writ, which certainly dates back to Lord Bacon's time ^ 
and apparently much earUer,^ but the extension of the 
remedy until it might well be described as a " grand distress " 
was doubtless as late as Coventry's day.^ From the first, 
however, the courts of common law bitterly resented the use 
of the process as an infringement of their monopoly of pro- 
ceedings in rem} As a matter of fact, the original object of 
the process was still the coercion of the defendant,^ but the 
common lawyers were right in seeing in sequestration a 
further movement of equity toward a more direct and effi- 
cient enforcement of decrees than a proceeding strictly in 
personam could ever secure. In Hide v. Pettit,^ Fountain 
arguing for a sequestration urged: 

If you should take away sequestration the justice of the court 
would be elusory; and that after a suitor had been at great charges in 
obtaining a decree if the defendant would be in prison there would be 
no remedy for the plaintiff to come by the fruit of his decree; and the 
remedy by imprisonment would be ineffectual for if he go abroad no 
escape lies. Upon a judgment in a court-baron a levari fac' lies which 
takes all the profits of the land, and a statute before a mayor takes all. 
And, therefore, not unreasonable that so great a court as this should 
have an effectual means of bringing suitors to the fruit of their suit, 
which without a sequestration cannot be done. 

Gradually the scope of the process widened when used to 
enforce decrees, so that any property of the defendant could 
be sequestered, and not merely kept from the defendant, 
but if personal property, sold,'' or if real estate, its rents and 

^ Cf. Bacon's Orders in Powell, 35, 41. 

2 Cf. Earl of Kildare v. Eustace, (1686) i Vern. 419) 42i; Hide v. Pettit, (1667) 
I Ch. Cas. 91; Awbrey v. George, Monro 758. 

' Cf. Williams, Real Property (21st ed.) 163 n. 

* Brograve v. Watts, (1599) Croke Eliz., 651; Colston v. Gardner, (1680) 2 
Chancery Cas. 43. 

6 Cf. Bligh V. Earl of Darnley, (1731) 2 P. Williams, 619-620; and 2 Daniell, 
Chancery Practice (ist ed.) 690-691. 

^ (i666) I Chancery Cases, 91-92. 

^ Wharam v. Broughton, (1748) i Yes. Sen. 180. 



EQUITABLE PROCEDURE IN REM 83 

profits used ^ to satisfy the plaintiff's claim. Moreover, out 
of the sequestrator the court developed the receiver,- with 
all his important administrative functions, still further 
enlarging thereby the power of the court to give relief to 
creditors analogous to that given by execution at common 
law. With the invention and subsequent enlargement of 
the writs of assistance and sequestration the creation of 
methods of enforcement came to an end. If sequestration 
proved ineffective no further process of coercion was avail- 
able, nor is to-day. But legislation continued the develop- 
ment of a process independent of the will or act of the 
defendant. 

Although not the next in chronological order, the statutes, 
now universal, permitting decrees for the payment of money 
to be enforced by ordinary execution as at common law may 
be cited here,^ as a still longer step in the direction taken by 
the writ of sequestration. Here in this class of decrees the 
court is at last able to enforce its order absolutely independ- 
ently of the will of the defendant. 

Perhaps nowhere does the historical anomaly which still 
confines a court administering equity to acting in personam 
exhibit itself more clearly as an anachronism than in the 
situation presented when the court is asked for relief in equity 
against a judgment. Originally the powers of a court of law 
to relieve against its own judgment once rendered were very 
limited, and the method of relief was very cumbrous and 
difficult of operation. Recourse was naturally had to the 
powers of the Chancellor to enjoin the person who had 
obtained a judgment which for any reason ought not to be 
enforced, from availing himself of it.'' Out of this clash of 

» Elvard I'. Warren, (1681) 2 Ch. R. 192; cf. White v. Gcraerdt, (1832) 1 Edw. 
Ch. 336. 

* Middlelon v. Lorte, (161 7) Monro 245. 

» England: 1 & 2 Vict., c. no, §§ 18, 19; United Slates: e. g. Cal. C. C. P., § 684; 
111. Hurd's Stats. (1909) c. 22, §47; United States Equity .Rules V'lII. 

* See cases cited in Ames, Cases in Equity, I, 5, n. i. 



84 THE ENFORCEMENT OF DECREES IN EQUITY 

jurisdictions arose the famous and long-continued contro- 
versy which began as early as the reign of Edward IV and cul- 
minated in the quarrel between Lord Coke and Lord EUesmere 
in the time of James I.^ The diplomatic adjustment of this 
controversy was embodied in the doctrine that the court of 
chancery may restrain a party from executing a judgment 
which it is inequitable for him to avail himself of; but on 
the other hand this is not to be regarded as in any wise 
interfering with the judgment itself.^ So, as a compara- 
tively recent Wisconsin case rather significantly phrases it : ^ 

The jurisdiction of equity is not exercised to disturb a judgment. 
That can only be done according to the methods provided by the Code. 
But it acts directly upon the party who is in a position to, and might, 
if not restrained of his liberty, enforce a judgment, tying his hand so 
as to prevent him from doing so; thus leaving the judgment good in 
form but valueless and harmless in fact. 

Out of this historical background, a relic of the days when 
courts of equity and common law were rivals, with rival 
judges and bars quarreling for jurisdiction, survives a rule 
which becomes almost an absurdity when in all but six of 
our states the court of law and the court of equity are identi- 
cal in membership. If a judgment has been obtained in a 
court of law by fraud or deception practiced on the court, 
means of having that court absolutely vacate and annul the 
judgment and strike it from the records of the court are now 
well provided at common law, its powers in this situation 
having been considerably enlarged in the struggle for juris- 
diction with the court of chancery. But if for any valid rea- 
son, for example where through mistake the right to move 
for a new trial has been lost, the relief on the same fraudu- 
lently obtained judgment has to be sought in equity, then 
in the absence of statute all that the equity court can do is to 

1 Spence, I, 674-676. ' Balch v. Beach, (1903) iig Wis. 77, 85. 

^ See Story, Equity, II, § 1571. 



EQUITABLE PROCEDURE IN REM 85 

enjoin the person who holds the judgment from ever collect- 
ing it.* In other words, the same man who as a judge at 
common law can annul his judgment absolutely cannot 
acting in equity clear the fraudulently obtained judgment 
from the record of the court. 

But here, as everywhere in the field of equity jurisdiction, 
the limitation to the court's powers of action for the purpose 
of coercing the defendant to do equity or to refrain from 
doing what is inequitable has proved too narrow to survive 
generally in practice. Here in particular the amalgamation 
of law and equity under the codes has not merely enlarged 
the powers of the court to open, amend, and vacate judg- 
ments, but where resort must still be had to equity for relief ^ 
statutes in many states make that relief complete. The 
equity decree cancels the judgment and wipes it from the 
record of the court; in a word operates in rem and not as 
formerly merely in personam.^ 

These instances of statutory extension of the powers of a 
court of equity to enable it to give a real effect to its decrees 
are not exhaustive. The statutes already spoken of in 
another connection,^ giving equity power to divest title 
from incompetent trustees and vest it in new trustees are 
older than any of these hitherto cited in this chapter and 
mark even more definitely a break with the doctrine that 
equity acts only in personam. 

Of course the very statutes which this essay discusses are 
themselves the best evidence of the general recognition that 

1 Yancy v. Downer, (1824) 5 Litt. (Ky.) 8; Stanton v. Embry, (1878) 46 Conn. 
65, 74. Note the criticism on this limitation of the court's power in Brooks t;. 
Twitchell, (1903) 182 Mass. 443, 447. 

- Cf. Parsons I'. Wcis, (1904) 144 Cal. 410; Larson v. Betenbender, (1896) 100 
la. no. 

» Cf. e. g. Cal. C. C. P., § 738, and Sullivan v. Lumsdcn, (1897) ii8 Cal. 664; 
Jones V. Jones, (1908) 140 Cal. 587. Cf. Ky. C. C. Practice, § 552; la. Code, § 2877; 
Colo. R. S., c. 34, § 1408; Whittlesey v. Delaney, (1878) 73 N. Y. 571. 

* See p. 66. 



86 THE ENFORCEMENT OF DECREES IN EQUITY 

this maxim is an anachronism in our legal system. Out of a 
past situation in which the administration of justice was 
divided between rival courts has resulted the anomaly that 
the court with power to decree the only adequate remedy in 
many cases of violated rights possesses as its sole means of 
enforcing that remedy, a process often seriously ill-adapted 
to its purpose. With the recognition of the unity of our 
legal system these historical limitations are disappearing, 
and the reluctance to grant to the courts administering 
equitable remedies as complete power as is possible in order 
to make these remedies effective is seen to be little more than 
prejudice. 



CHAPTER VI 

THE DEVELOPMENT OF EQUITABLE INTERESTS INTO 
REAL INTERESTS 

§ I. Introductory and Historical 

The specific problem under discussion derives both theo- 
retical and practical importance from its relationship to the 
larger question of the nature of equitable rights. That 
problem divides the jurists and the courts even to-day; but 
it is submitted that the trend both of juristic discussion and 
of the decisions moves toward a recognition that certain 
equitable rights are genuine rights in rem, recognized by a 
court of equity, although sometimes, owing to the deficiency 
in its procedure already discussed, inadequately vindicated; 
and although the court which vindicates them recognizes the 
large power of a holder of legal title to destroy them by a 
transfer to a bona fide purchaser. 

The essence of rights in rem is the generality of the claim 
they give the owner to afifect the actions of others — the 
extent, in other words, of their incidence.^ The duties cor- 
responding to these rights are imposed not merely on some 
single definite person but generally upon all who may deal 
with the object of these rights, subject only to overriding 
powers which in some cases may be conferred on some other 
person for some other purpose. Thus the rights in rem of a 
property owner not to have his property trespassed upon 
may be subject to the power of eminent domain exercised by 
the state. In this sense many, though by no means all, 
so-called equitable rights- have now passed beyond the 

• See Holmes, J., in Tyler v. The Judges, (igoo) 175 Mass. 71. 
2 For an attempt to enumerate the equitable rights which have become rights in 
rem, see Pomeroy, Equity Jurisprudence (3d ed.) I, §§ 146-149 and ibid., II, § 975. 

87 



88 THE ENFORCEMENT OF DECREES IN EQUITY 

status of rights in personam against some particular vendor, 
trustee, or mortgagee, and have become rights in rem, 
available against all the world, but subject to a power in the 
holder of the legal title to the property involved to cut off 
these equitable rights by a transfer to bona fide purchasers 
for value without notice. Of this more anon. 

That there should be a difference of opinion, even so 
marked a one as exists, on the nature of these equitable 
rights, is not unnatural when one considers the history of 
their development. This history is one of progress from 
contractual to property rights, from rights purely in per- 
sonam to rights not only in personam but also in rem. Such 
an evolution is by no means unique; it is indeed the normal 
and general one not only of similar rights in other legal 
systems but also of other rights in the Anglo-American legal 
system. Thus not only did equitable rights develop from 
rights in personam to rights in rem in the Roman law,^ but 
such common-law rights as the rights of a bailor passed from 
rights which could be asserted only against the bailee to 
rights which can be asserted, and asserted in a court of law, 
against all who may deal with the subject-matter of the 
bailment.' 

But this development of certain of the important equitable 
rights has been taking place at a time recent when compared 
with the parallel developments above adverted to, and so at 
a time when juristic conceptions had become stereotyped by 
being already formulated. In other words, the slow but 
steady change in the rights of cestui que trust from rights in 
personam against the trustee to rights in rem available 
generally has been lost from view because the nature of the 
rights had been authoritatively defined while they were still 

1 See Sohm, Institutes of Roman Law. (Ledlie's trans., 3d ed.) 310-311, 81-84. 

2 See Ames, Lectures in Legal History, 73-76, 181; Holmes, The Common Law, 
166 et seq. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 89 

personal. The account of them given by Coke in the end of 
the sixteenth century is still repeated by the editors of our 
standard texts in the beginning of the twentieth century as 
an adequate formulation of the rights by which the law pro- 
tects the interest of cestui que trust.^ Our writers are still 
at least lip-loyal to what was once truth, but is now mislead- 
ing and even reactionary, not only failing to explain the 
state of the decisions ^ and the implicit doctrine of the statu- 
tory extensions of equity's powers already being made,^ but 
also obstructing further progress in the simplification and 
rationalization of the law.'* 

The history of the development of equitable rights into 
rights in rem can be most clearly and fairly traced in the 
special case of trusts. A trust is the t)pical equitable 
interest for this purpose because of its early development, 
its intrinsic importance, and the fundamental part the 
doctrines with respect thereto play in the reasonings of 
courts of equity. 

" Of all the exploits of equity," says Professor Maitland,^ " the 
largest and most important is the invention and development of the 
Trust. It is an 'institute' of great elasticity and generality; as 
elastic, as general, as contract. This perhaps forms the most distinc- 
tive achievement of English lawyers." 

'' Of all equities," says Mr. T. Cyprian Williams,^ " an express 
trust imposed on the owner of land to hold it for the use of another in 
fee is the most powerful, the most intense, and the most adverse to the 
owner's legal right." ^ 

The history of the development of this important and 
characteristic Anglo-American institution reveals most 
clearly a progress from a pure obligation, binding only the 

» See Lewin, Law of Trusts (12th ed., 191 1) ii. Cf. Maitland, Lectures on 
Equity (1909) 43. 

2 See infra pp. 29-32; 33-36; 55-59- ' See supra pp. 23-25. 

* See infra pp. 59-65. ^ Equity, 23. « In 51 Solicitors' Journal, 155. 

^ See also Pomeroy, Equity Jurisprudence (3d ed.) I, §§ 149, 151. 



90 THE ENFORCEMENT OF DECREES IN EQUITY 

trustee and his cestui, to a property right, enforceable in 
equity against all the world up to the point where the 
countervailing right of the bona fide purchaser for value 
" cuts off the equities " of the beneficial owner of the trust 
res. My thesis briefly is that this attenuation of the trustee's 
powers and " reifying " of cestui's powers has already reached 
a stage at which an account of cestui's rights is justified in 
characterizing them as a complex including not only rights 
in personam against the trustee but also genuine rights in 
rem} The trustee's interest has faded away to a shadow 
which accompanies the substantial interest of the beneficiary. 
In the vivid language of Lord Chief Justice Wilmot:^ 

1 take it to be a first and fundamental principle in equity that the 
trust follows the legal estate wherever it goes, except it comes into the 
hands of a purchaser for valuable consideration without notice. A 
court of equity considers devises of trusts as distinct substantive 
devises, standing on their own basis, independent of the legal estate; 
and the legal estate is nothing but the shadow which always follows the 
trust res in the eye of a Court of Equity. 

This change in the nature of the trust relationship has 
been a very gradual one. There was a time in the history 
of England when the obligation linking the trustee and 
cestui was not in any sense a legal bond. A use (the direct 
antetype of the modern trust) depended for its fulfillment 
upon the faith of the feoffee to uses. He could deny the 
claim of his feoffor to the profits of the land and appropriate 
them to himself with no fear of legal interposition, since at 
law he was the owner of the property entrusted to him. 
His duty was a purely moral one.^ As Mr. Ames points 

* For a concise and accurate statement of the contents of cestui's rights see 
Professor Pound's review of Willoughby, The Legal Estate, etc., in 26 Harv. 
Laiv. Rev. 464. 

2 Atty. Gen. v. Ladj' Downing, (1767) Wiim. i, 22. (Italics supplied by the 
author.) 

' Bacon, Reading upon the Statute of Uses, 20, 22, 23. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 9 1 

out/ although uses are frequently referred to in the books 
from the latter part of the twelfth century to the beginning 
of the fifteenth, no intimation exists of any right of the 
intended beneficiary to proceed in a court of the common 
law- or of Chancery^ against the feoffee. ^loreover, in 
1402 the Commons presented a petition in Parliament pray- 
ing for relief against many feoffees to uses who were alienat- 
ing the tenements granted, and setting forth that " in such 
cases there is no remedy unless one be provided by ParHa- 
ment.'"* 

Just when with the growth of Chancery's power to grant 
relief on a bill in equity Chancery took control of the obliga- 
tion, is not clear. As Sir Kenelm Digby has said,^ the 
materials on which our knowledge of the jurisdiction of the 
Chancellor is based are very scanty. An application to the 
Chancellor to protect certain uses of land occurs in Richard 
II's reign between 1393 and 1399.'^ The first recorded decree 
in favor of a cestui que use was made in 1446 ; '^ but Mr. Ames 
regards it as a reasonable inference from the frequency of bills 
in chancery during the reign of Henry V (1413-1422) that 
equity was affording reUef to cestuis by this time, and that 
the purely honorary obligation of the feoffee had become a 
legally sanctioned one.** 

At first, however, it was regarded as a pure obligation, and 
enforceable only by compelling the unconscientious feoffee 
to make a conveyance of title to cestui or hold it for his 

' Ames, Lectures in Legal History, 236; and cf. Pollock & Maitland, History of 
English Law (2d ed.) II, 228-232. 
2 Cf. Pollock & Maitland, II, 235. 
' Cf. Bacon, Reading upon the Statute of Uses, 20, and Rowe's note, 32. 

* 3 Rot. Pari. 511, No. 112. 

* Digby, History of the Law of Real Property (5th ed.) 323. 

* Select Cases in Chancery, No. 45. 

^ Myrfyne v. Fallan, 2 Cal. Proc. Ch. .x.xi. 

* Ames, 237; and see Select Cases in Chancery, Cases 117, 118, 122, 135, 138, 
147- 



92 THE ENFORCEMENT OF DECREES IN EQUITY 

benefit.^ It was this conception of the relationship that 
Coke's conservatism, his jealousy for the common law, and 
his corresponding disparagement of the rights enforced in 
courts of equity jurisdiction, fastened upon our juristic 
thinking, although even at the time when he wrote, a move- 
ment away from the situation he described was already well 
under way. To Coke, in his often repeated phrase, a use 
was only " a trust or confidence reposed in some other, which 
is not issuing out of the land, but as a thing collateral, 
annexed in privity to the estate of the land, and to the per- 
son touching the land, scilicet, that cesty que use shall take 
the profit, and the terre-tenant shall make an estate according 
to his direction. So as cesty que use had neither jus in re, 
nor jus ad rem, but only a confidence and trust, for which 
he had no remedy by the Common Law, but for breach of 
trust his remedy Vv^as only by subpoena in Chancery." ^ 

But even a century before Coke's time this mere right in 
personam against the feoffee who had agreed to hold property 
to uses had already begun to have added to it by Chancery 
for the adequate protection of the interests of cestui que 
trust rights involving duties of others than the feoffee who 
was under agreement to hold the property in trust for cestui 
que trust. Although a note of a case in Fitzherbert's 
Abridgment,^ decided in 1453, runs: " If I enfeoff a man to 
perform my last will and he enfeoffs another, I cannot have 
a subpoena against the second because he is a stranger, but 

1 Cf. Y. B. 14 H. VIII (Mich.) fol. 4, pi. 5. See Ames, Leclures on Legal 
History, 238, and cases cited in note i. 

■ Co. Lit., 2726; cf. also i Plowd. Com., 3526; i Co. Rep. 121b, 122, 12'ja, 
140; 2 Co. Rep. 586, 78; 6 Co. Rep. 646; 7 Co. Rep. 136. 

Lord Bacon shrewdly remarks that Coke's reports contain " too much de 
propria." Bacon's Works (Spedding's ed.) V, 86. 

On the mfluence and character of the Reports see G. P. Macdonnel, Article 
Coke, Sir Edward, in Dictionary of National Biography (ed. 1908) IV, 696; and see 
also Best, C. J., in Garland v. Jekyll, (1824) 273, 296. 

' Title Subpoena, pi. 19. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 93 

1 shall have a subpoena against my feoffee and recover in 
damages for the value of the land," even then the comment 
is appended: " Per Yelverton and Wilby, clerks of the rolls, 
who said that if my feoffee in confidence enfeoffed another 
upon confidence of the same land, that I should have a 
subpoena against the second, but othenvise when he was 
enfeoffed bona fide, for then I am without remedy, and so it 
was adjudged in the case of the Cardinal Winchester." And 
by 1465 cestui's interest in the subject-matter of the use was 
protected by imposing a duty to execute the feoffor's will 
with regard to this subject upon the general class of purchas- 
ers of the property with knowledge of the use.^ Doubtless 
the reason for this was that the Chancellors, desirous of lend- 
ing legal sanction to what was in the thinking of the time 
according to conscience,^ enforced against all who with knowl- 
edge of the use assumed control of its subject-matter the 
duty of performing the feoffor's will. But this enforcement 
constituted none the less a recognition of the real nature of 
the right which was correlated with this duty imposed upon 
all of a class of persons who had not bound themselves by a 
personal obligation to the feoffor or cestui que use. 

Just as this enlargement of cestui's right, from a personal 
one against the feoffee to a general one against purchasers 
with notice, became fixed only after some hesitation, so also 
a second extension took place after a similar period of 
uncertainty. If the use were only a confidence binding on 
the conscience of the feoffee, then the heir of the feoffee, 
since his conscience was not bound, would take the legal 
estate which his ancestor had held to uses, free of these 
uses. But as early as the reign of Henry VI, petitioners 

' Y. B. 5 Edw. IV (Mich.) 7; cf. Fitzherbert's Abr., title Subpoena, pi. 14. 
Cf. also Chudleigh's Case, (1589) i Rep. 120a, 1226; and Mansell v. Mansell, (1732) 

2 P. W. 678, 681. 

2 Cf. Y. B. 14 H. VIII (Mich.) 4, per Fitzhcrbert, J. .\lso Bacon's Reading, 
20, 29. 



94 THE ENFORCEMENT OF DECREES IN EQUITY 

sought the aid of Chancery to compel the heirs of feoffees to 
perform the trusts which had been binding on their ances- 
tors.^ In Edward IV's reign Choke, J. discussing on a 
motion the question whether a subpoena would lie against 
the heir of a feofifee to uses, said he had once sued out such a 
subpoena, and the matter was long debated. But he said 
the opinion of the Chancellor and the justices was that it 
did not lie; so he sued a bill to Parliament. Whereupon 
Fairfax replied that the matter was a good ground for 
general discussion by the judges. This was in 1468.^ 
Fourteen years later (1482) the Chancellor sought advice 
on the point with the justices in the Exchequer Chamber. 
He said that he found records in Chancery of subpoenas as 
having been granted against the heirs of feoffees. But 
Hussey, Chief Justice of the King's Bench, said that when he 
had first come to court thirty years before, it was unani- 
mously agreed by the court that a subpoena would not lie 
against the heir of the deceased feoffee. To this the Chancel- 
lor replied that then it was a big piece of foolishness to enfeoff 
another of one's land.^ In 1499 Chief Justice Frowike 
stated it as law that the heir of the feoffee would not be 
bound, for the feoffor had not put confidence in the heir, but 
only in the feoffee.'* To this, however, the reporter appends 
a quaere. And a quarter of a century later (1522) it had at 
length become the law that the heir of the feoffee has the 
same duty as the feoffee himself to carry out the will of the 
feoffor.^ But for a long time, even after this, the decisions 
show the reluctance of the courts to impose a constructive 
obligation on one who had not agreed personally.^ 

^ See Goold v. Petit, 2 Cal. Proc. Ch. xxxviii; and Saunders v. Gaynesford,2 
Cal. Proc. Ch. xxviii, (temp. Henry VI) 

2 Y. B. 8 Edw. IV (Mich.) 6. ' Y. B. 22 Edw. IV (Pasch.) 6. 

< Y. B. 15 H. VII (Mich.) 13. 

* Y. B. 14 H. VIII (Mich.) 8; cf. also Fitzherbert's Abridgment, title Subpoena, 
pi. 14. 

* Cf. Weston v. Danvers, (1584) Tothill 105. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 95 

The extension of the classes bound by the use to include 
the heir as well as the donee of the feoffee, and his grantee for 
no value or with notice of the use, marked the extreme limit 
of the progress in protecting the interest of cestui que use 
prior to the Statute of Uses. The very case which enumer- 
ated these as bound by the use distinguished the widow of the 
feoffee, who was agreed by the judges to take her dower 
right to her own use on the ground that she did not take 
through her husband's act, or claim by him. The same rule 
governed the case of a lord taking by escheat. He took free 
of the use. "For," said Broke, J., ''in these cases there 
was no act by the feoffee to deceive or defraud the feoffor, 
but it was done by order of the law." ^ 

It is common learning that the Statute of Uses ultimately 
failed completely in accompHshing the ostensible aims of its 
royal proponent,^ but it is true that the immediate effect of 
the statute was to check seriously, and for some time ap- 
parently almost completely, the enfeoffing of lands to uses,^ 
while trusts raised out of chattels or chattel interests in 
realty, although recognized from the first as clearly outside 
the statute, were comparatively insignificant.'* Active 
trusts casting special duties on the trustee were held soon 
after the statute to have escaped its provisions, but it was 
not until nearly a century after the Statute of Uses that the 
passive trust arose ^ and Chancery resumed the task of 
developing the rights necessary to the proper protection of 
the beneficiary, now cestui que trust. 

The full significance of this period of slow and obscure 
growth in the development of the trust doctrine may 

» Y. B. (1522) 14 H. VIII (Mich.) 4- 

' See Jenks, Short History of English Law, 99. 

3 Kerly, History of Equity, 135; and see Buckingham v. Drury, (1768) 2 Eden 65. 

* Buckingham v. Drury, supra. 

* See Ames, The Origin of Trusts, IV Green Bag, 81, reprinted in Lectures on 
Legal History, 243 et seq. Cf. Maitland, Equity, 42, and Jenks, Short History, 100. 



g6 THE ENFORCEMENT OF DECREES IN EQUITY 

perhaps not be apparent at first blush. The trust, of course, 
is the successor of the use,^ and its law in general was mod- 
eled by Chancery upon the law of uses. But the classical 
statement of that law came to be made at a time when the 
jealousy of the common-law judges of the growing power of 
Chancery had been exacerbated by the way in which the 
Court of Chancery was encroaching on the jurisdiction over 
contracts^ as well as by the use which the Stuarts were 
making of the court to further political ends. Moreover, 
this was a period so definitely dominated by the rigidity of 
the common-law ideas that, as Maitland says, " change had 
to be introduced evasively and by means of circumventive 
fiction. Novel principles could not be admitted until they 
were disguised in some antique garb." ^ While the Year 
Book cases could be vouched for the doctrine that a use was 
only a trust and confidence which the feoffor put in his 
feoffee, there was an entire absence of definitely accessible 
authority on the other side. The seeming infrequency with 
which cases involving the problems of trusts came before 
Chancery and the absence of published Chancery reports,* 
together with the inexperience of some of the Chancellors 
and the purely common-law training of others, must have 
tended to retard the further development of doctrines of the 
trust. Moreover, these same causes led to the practice of 
consulting with the common-law judges on cases which did 
arise. Of course the influence of the latter was always on 
the side of the traditional view, with its limitation of Chan- 
cery's power and its failure to recognize any tendency 
to extend cestui que use's interest beyond his protection 
against the disloyal feoffee. Thus in Johnson's case ^ (or as 

1 Lewin, Trusts (nth ed.) 6; Kerly, History of Equity, 136. 

2 See Ames, Specific Performance of Contracts, I Green Bag, 26, reprinted in 
Lectures on Legal History, Lecture XXII, 248, citing numerous illustrations. 

' Maitland, Outlines of Legal History, II Collected Papers, 483. 

* See Kerly, History of Equity, 129 and note. * (1596) Popham, 106. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 97 

Coke calls it, Witham's case) the question as to whether 
the equitable term of a married woman vested in her husband 
by survivorship or in the wife's administrators was held 
doubtful in character, so that it was put to the Chief Justices 
of the law courts, " ... upon which they and the Chief 
Baron and all the other Justices . . . were clear in opinion 
that the said administrators had now as well the interest 
as the use also of the said term as well in conscience as in 
law, . . . and that the said Witham shall not have it 
because it is as a thing in action "; or, as Coke reports it,^ 
" a thing in privity and in nature of an action, for which no 
remedy was but by writ of subpoena." And in 1631 a bill 
in Chancery^ having been referred to Croke and Jones, JJ., 
for an opinion, they held that when " a widow is dowable by 
act or rule in law a Court of Equity shall not bar her to claim 
her dower; for it is against the rule of law, viz. where no 
fraud or covin is, a Court of Equity will not relieve." 

It was out of this situation that the famous dictum of 
Coke already cited arose; and this not unprejudiced defini- 
tion, only partially true when it was formulated, became the 
classical statement which his great Institutes as well as his 
Reports — beyond question the most influential doctrinal 
writings in the history of English law, and for over a century 
the principal institutes for its understanding — inculcated 
into generation after generation of the lawyers of both bars.^ 
Professor Ames refers to Coke's explanation of the rule 
prohibiting the assignment of choses in action as an instance 
of " the power of a great name for the perpetuation of error." 
It seems not unfair to regard the effect of Coke's arrest of the 
doctrine of the beneficiary's rights by his formulation of it in 
terms of an already waning tradition, as a parallel instance 
of the power of a great name to stereotype a developing 
doctrine. 

^ 4 Institutes, 87. ' See supra, p. 92, note 2. 

* Nash V. Preston, Croke Car. (1631) 190, 191. 



98 THE ENFORCEMENT OF DECREES IN EQUITY 

But while the Institutes spoke of the use as a mere con- 
fidence in the feoffee the courts of Chancery were none the 
less steadily developing the trust away from this account of 
its model. Even Bacon in his famous Reading upon the 
Statute of Uses, while approving Coke's dictum that a use 
is ntiXherjus in re nov jus ad rem, offers as his own definition: 
" Us us est dominium Jiduciarium " — use is an ownership in 
trust, — and adds, " So that usus et status sive possessio 
potius differunt secundum rationem fori quam secundum natu- 
ram rei, for that one of them is in a court of law, the other 
in a court of conscience." ^ 

Whether the philosophic Bacon had more than a glimpse 
of the tendency which had escaped the notice of his erudite 
but prejudiced contemporary is perhaps doubtful, but the 
matter is clearer in the actual decisions of Chancery. The 
very cases which had been decided under the influence of the 
common-law judges disappeared as authority within their 
own century. When in Rex v. Holland (1647) " it was argued 
that Johnson's (or Witham's) case prevented a husband from 
taking a trust of his wife's by survivorship, Rolle, J., inter- 
posed, saying, " It has since been resolved that the husband 
should have it in that case." It is significant as showing 
how far the court had already departed from the strictness 
of the earlier case, that here the counsel who relied on it said, 
arguendo, " Uses at the common law were things partly in 
action," and that Rolle in his decision said, " A trust is not a 
thing in action but may be an inheritance or a chattel as the 
thing falls out." ^ A few years later (1678) it was said to be 
the constant practice of the Chancery court to reheve against 
the defendant's dower when she was the wife of a trustee, and 
Nash V. Preston was eo nomine overruled.^ 

1 Bacon, Reading on the Statute of Uses, g, (1602). ^ Aleyn 15. 

' S. C. in Style 20, 21. (Italics supplied by the author.) 
* Noel V. Jevon, (1678) 2 Freem. 43. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 99 

These cases show an unmistakable breaking away from the 
doctrine that the trust relation is a mere obligation. The 
notion of privity which the judges in the reign of Henry VIII 
expressly declined to extend to one taking by dower right, 
now, when stretched to protect cestui against his trustee's 
widow (who is always treated as a purchaser and not a 
donee), seems little better than (in Maitland's figure) the 
antique garb to disguise the novel principle.^ The progress 
was doubtless largely unconscious. Equitable principles 
were still inadequately formulated, and, as Maitland says, 
" Equity was still living from hand to mouth, finding suffi- 
cient for each day the cases in that day's cause list." ^ 
Moreover, the court still lacked published reports. The 
phrase in Noel v. Jevon ^ — a case in Lord Nottingham's 
court — : "so it was said is the constant practice of the 
court now " gets significance in this connection when com- 
pared with the quaint chapter heading in Nottingham's own 
MS. treatise on Equity: " Cap. 7. Equity relieves en 
plusors cases I'ou les printed livres deny it." ^ Even in the 
meager notes of Nottingham's decisions — notes themselves 
not published for some time after his death — we can trace 
the accelerating breaking-up of the personal-obligation 
theory. The relief against the widow's claim for dower 
already referred to was applied to claims of free bench by the 
widows of copyhold trustees in the case of Bevant v. Pope.^ 
And in 1673 Nottingham held, in direct opposition to the 
law laid down in the Year Books as to uses,'' that the bene- 
ficial interest of cestui in the trust property would be 

* Cf. language of Baron Hale in Pawlett v. Atty. General, (1667) Hardres 465, 
467-68. 

* Maitland, OuUUks of Legal History, II Collected Papers, 490. 
^ Vide snpra, n. i. 

* Quoted in Campbell's Lives of the Lord Chancellors, R', 204. 

* (1681) Freem. 71. 

« Cf. Y. B. 14 H. VIII (Mich.) 4, per Broke, J., and Pollard, J. 



lOO THE ENFORCEMENT OF DECREES IN EQUITY 

protected against the claims of the trustee's judgment 
creditors.^ 

Not only on the side of recognizing the purely represent- 
ative character of the trustee's interest in the property he 
held in trust, but also in extending Rolle's doctrine of the 
substantial nature of cestui's equitable interest,^ Notting- 
ham helped build up the theory of trusts. He decided that 
cestui's judgment creditor might prosecute an equitable 
fieri facias,^ and that a trust of a freehold should be treated 
as assets in the hands of cestui's heir.^ This decision was 
much doubted, and the case presented a question of difficulty 
which was finally resolved in favor of the soundness of Not- 
tingham's position.^ It is now well settled that Lord Not- 
tingham was the author of at least the substance of those two 
sections of the Statute of Frauds (1677) which have been 
most contributory to the development of the doctrine that 
cestui's rights are property rather than merely personal 
rights.^ Section 9 embodied definitely in law the doctrine 
which had been making way, especially in the years preced- 
ing the passage of the statute, that cestui's interest in the 

1 Morley v. Martin, (1673) Rep. t. Finch 63; and cf. also to the same effect 
Burgh V. Francis, (1670) Rep. t. Finch 23, a case of mortgage. And see Finch v. 
Earl of Winchelsea, (1751) i P. W. 278, in which Lord Cowper held that where a 
vendee under an agreement of purchase had paid his money " the articles made for a 
valuable consideration and the money paid will in equity bind the estate, and pre- 
vail against any judgment creditor mesne betwixt the articles and the convey- 
ances." (p. 282.) In the argument, counsel put the matter significantly thus: 
" If a trustee confessed a judgment or statute, though at law these were liens upon 
the estate, yet in equity they would not affect it, because the estate in equity would 
not belong to the trustee but to the cestui que trust." (p. 278.) 

2 Cf. p. 98. 

3 Anon, cited Balch v. WastaU, (1718) i P. W. 445; and cf. Nottmgham's 
opinion in Pitt v. Hunt, (1681) 2 Ch. Ca. 73. 

« Lord Grey v. Colville, (1678) 2 Rep. Ch. 143. 

5 See Lewin, Trusts (nth ed.) 1039, 1040. 

6 See Hening, The Original Drafts of the Statute of Frauds and Their Authors, 
(1913) 61 U. of Pa. Law Rev. 283, especially 315; Costigan, The Date and Author- 
ship of the Statute of Frauds, 26 Harv. Law Rev. 329. 



THE DEVELOPMENT OF EQUITABLE INTERESTS lOI 

trust could be assigned or devised by cestui; ' and section 
19 with similar definiteness settled, at least as to simple 
trusts, the mooted question - whether cestui's equitable 
interests in land were available for the payment of his debts, 
as well after his death as also in his life time. As Lord Mans- 
field justly said of Nottingham, " Trusts were not on a true 
foundation till Lord Nottingham held the great seal "; ^ and 
it is Nottingham's work in the field of trusts especially that 
has made him known as " the father of Equity." '* 

Progress along both lines — of protecting cestui's interest 
against others than the trustee and of developing the rules of 
law governing what Maitland has happily termed the 
'' internal " ^ aspects of cestui's estate — was relatively 
rapid in the eighteenth century. 

" It is the maxim of this court," said Lord Hardwicke, " that trust 
estates, which are the creatures of equity, shall be governed by the 
same rules as legal estates, in order to preserve the uniform rule of 
property; and that the owner of the trust shall have the same power 
over the trust as he would have if he had the legal estate, for the like 
interest or extent." ^ 

* Cf. Wamistrey v. Lady Tanfield, (1629) i Ch. R. 29; Goring v. Bickerstaff, 
(1622) 1 Ch. Ca. 41, 48; Lord Combury v. Middleton, (1671) i Ch. Ca. 208-211, 
perWyld.J. 

This was true of cestui's interest in a use even before the statute, i R. 3, c. i. 
Cf. Duke of Gloucester v. Bishop of Ely, (1473) i Cal. Proc. Ch. .xc; Archbishop of 
York :;. Osbom, (1474) ibid, xciv; Flykke i;. Banyard, (1483) ibid, cxv; and cf. also 
Tryppe v. Chevyn, (1484) ibid, cxvi; Baildon, Select Cases in Chancery, Case 127 
(undated). 

With I Rich. Ill, c. i cf. 50 Ed. Ill, c. 6. .\s to the meaning of i Rich. Ill, 
c. I, see Combe's Case, (1613) 9 Co., 75a, 75/), and i Spence, Equitable Jurisdiction, 
461. 

Coke's theory that cestui's interest was a mere chose in action seems in the case 
of transfers by cestui actually to have set back the clock for a century. 

^ Cf. p. 100, supra. 

' Burgess;;. Wheate, (1759) i Eden 177, 223. 

* See Blackstone, Commentaries, III, 55, 56; Campbell, Lives of the Lord Chan- 
cellors, IV, 204. 

^ Equity, 117. 

* Hopkins v. Hopkins, (1739) West t. Hardwicke, 606-609; cf. Watts v. BalU 
(1708) I P. W. 108, 109, per Lord Cowper: " Decreed by the Lord Chancellor that 



I02 THE ENFORCEMENT OF DECREES IN EQUITY 

Under the influence of this doctrine of the court, the rights 
of cestui que trust were treated in equity on the analogy of 
the common law, just as if they were estates. They could 
be disposed of by cestui.^ They were held to descend like 
legal estates of the same sort.- The husband of a feme 
covert cestui que trust had curtesy,^ although the husband of 
cestui que use had been held not entitled to it in Coke's day.'' 
The widow of cestui que trust was by an anomaly ^ refused 
dower in her husband's estate ^ until a modern statute, the 
Dower Act of 1833,'^ corrected it. 

Statutes dating back to Henry VIII's reign had recognized 
cestui's substantial estate by providing that his estate of 
inheritance should be forfeited to the crown for treason.^ 
By judicial decision an equitable term of years was forfeited 
by the commission of a felony by cestui que trust.^ On the 
other hand, the influence of Coke's doctrine was too strong 
to permit the logical step of holding that an equitable estate 
should escheat on the failure of heirs. In the great case of 
Burgess v. Wheate^° the whole learning of the subject was 
marshaUed by the judges in a decision reached by a divided 
court. Lord Keeper Henley (afterward Lord Chancellor 
Northington) and Sir Thomas Clarke, M.R., holding that on 

trust estates were to be governed by the same rules and were in the same reason as 
the legal estate . . . and if there were not the same rules of property in all courts 
all things would be as it were at sea and under the greatest uncertainty." 

1 Warmstrey v. Lady Tanfield, (1629) i Ch. R. 29; cf. Lord Cornbury v. Middle- 
ton, (1671) I Ch. Ca. 208, 211, per Wyld, J.: " An interest in a Trust is in equity 
assignable or devisable." See p. loi, n. i. 

2 Blackburn v. Graves, (1675) i Mod. 102. 

» Sweetapple v. Bindon, (1705) 2 Vem. 536. 
* Chudleigh's Case, (1589) i Rep. 122a. 

5 See Mansfield in Burgess v. Wheate, (1759) i Eden 177, 224, and Casboume v. 
Scarfe, (1737) i Atk. 603, per Hardwicke. But cf. D'.\rcy v. Blake, (1805) 2 Sch. & 
Lef. 387, 388, per Lord Redesdale. 

6 Colt V. Colt, (1664-65) I Ch. Rep. 254. 
^ 3 &4 Wm. IV., c. 105. 

8 33 H. VIII, c. 20, § 2; 5 & 6 Ed. VI, c. II, § 9. 

9 Pawlett t>. Atty. Gen. (1665) Hardres 465, 467- ^" (i759) i Eden 177. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 103 

the failure of heirs of the owner of an equitable fee simple who 
had died intestate, the crown could not bring a subpoena 
to compel a conveyance from the trustee as the trust was 
absolutely determined. Lord Mansfield was of opinion that 
the crown should take by escheat. The opinion of the 
Master of the Rolls is a very thorough and careful discussion 
of the authorities. From a study of them he felt that the 
analogies of the law compelled him to follow the legal rule, 
which he conceived to be that the law gives escheat only for 
want of a tenant. Here there was a tenant, the trustee, and 
equity must follow the law. He declined to give an opinion 
as to the right of the trustee, saying, however, '' If the trustee 
came into a court of equity I might be of opinion that he had 
no right." ^ While he recognized also the invidious enrich- 
ment which might result from the decision he felt bound by 
the Hmitation set to equity by the clear doctrine of the law.^ 
Lord Keeper Henley, with equal learning, relied more 
explicitly on the authority of Coke and his predecessors, who 
wrote at a time when the right of cestui que use had not yet 
matured.^ He said: 

It seems pretty certain that in the consideration of uses with re- 
gard to escheat, courts of Equity proceeded on the same principles as 
the law; and if there was a tenant seised of the land to perform the 
services, had no regard to the merum jus of the tenant.'* 

His fundamental objection to the crown's claim was that the 
trust was extinguished. But he put his doctrinal position 
very clearly as follows : 

Where there is a trust, it should be considered in this court as the 
real estate, between cestui que trust and the trustee and all claiming 
by or under them; and the trustee should take no beneficial interest 
that the cestui que trust can enjoy; but for my own part I know no 
instance where this court ever permitted the creation of a trust to 
affect the right of a third. ^ 

1 212. 2 214. 5 See e.g., 246-248. * 244. * 251. 



I04 THE ENFORCEMENT OF DECREES IN EQUITY 

In other words, both the Master of the Rolls and the Lord 
Keeper held to the view that the only property right involved 
was that of the trustee, hitherto qualified by the obligation 
which he owed cestui — an obligation which had now dis- 
appeared. 

On the other hand. Lord Mansfield took with equal defi- 
niteness the position that trusts had now advanced beyond 
this point. He began by promising to contrast uses and 
trusts, enunciating as his thesis : 

The opposition is not from any material difference in the essence of 
the things themselves. An use and a trust may essentially be looked 
upon as two names for the same thing; but the opposition consists in 
the difference of the practice of the court of Chancery. If uses before 
the statute of H. VIII were considered as a pernancy of the profits, as 
a personal confidence, as a chose in action, and now trusts are considered 
as real estates, as the real ownership of the land; so far they may be 
said to differ from the old uses; though the change may be not so 
much in the nature of the thing, as in the system of law made use of 
upon it. 

Having defined the terms, I will first shew, negatively, what is 
not the law and nature of trusts. I apprehend the old law of uses does 
not conclude trusts now; where the practice is founded on the same 
reason and grounds, the practice is now followed. Its positive au- 
thority does not bind where its reason is defective; more especially 
that part of the old law of uses which did not allow any relief to be 
given for or against estates in the post does not now bind by its au- 
thority in the case of trusts, (pp. 2 17-21 8). 

He then carefully reviewed the progress of the equitable 
doctrine from the time when a use of land imposed only a 
moral obligation on the feoffee down to the time of the case 
at bar, and concluded: 

An use or trust heretofore was (while it was an use) imderstood to 
be merely as an agreement, by which the trustee, and all claiming 
from him in privity, were personally liable to the cestui que trust, and 
all claiming under him in like privity. Nobody in the post was en- 
titled under or bound by the agreement. But now the trust in this 



THE DEVELOPMENT OF EQUITABLE INTERESTS I05 

court is the same as the land, and the trustee is considered merely as 
an instrument of conveyance; therefore is in no event to take a benefit ; 
and the trust must be co-extensive with the legal estate of the land, 
and where it is not declared, it results by necessary implication; 
because the trustee is excluded, except where the trust is barred in the 
case of a purchaser for valuable consideration without notice. 

The trustee can transmit no benefit; his duty is to hold for the 
benefit of all who would have been entitled, if the limitation had not 
been by way of trust. There is no distinction now between those in 
the per and post, except in that case of dower which is founded, not 
upon reason, but practice (pp. 226-227). 

From this reasoning Mansfield arrived at the position that 
the trust estate escheated, as a legal estate would under 
similar circumstances, although the lord who comes in by 
escheat is not in any sense privy to the trust. 

It will probably be agreed that Mansfield's view of what 
would be a following of the legal analogy was a sounder one 
than Clarke's,^ and the only question would be whether the 
analogy could be followed here consistently with the personal 
theory of trusts. It is sometimes suggested "^ that Lord 
Mansfield was influenced by his civil-law training, and 
doubtless this is true.'^ The civil law had gone through the 
various stages of regarding an equitable claim as only a 
moral right, then as a pure obligation, and finally as a true 
right in rem. But Mansfield's familiarity with this history 
served to illuminate rather than befog his survey of the 
history of the trust in England. Had his view prevailed it 
seems likely that the occasional injustice which results from 
the application of the personal theory (e.g., in such a rule 
as that which in some jurisdictions bars cestui's right when 
his trustee had been guilty of laches), as well as the uncer- 
tainty and conflicting views both in the special law of trusts "* 

1 Cf. Maitland, Equity, 114. 

^ E.g., by Lord Redesdalc, in Shannon i;.Bradstreet, (1803) i Sch. and Lef. 52,66. 

3 Cf. principal case, 218. 

* Cf. Cave V. Cave, (1880) 15 Ch. D. 639, and Sturge v. Starr, (1833) 2 M. & 



Io6 THE ENFORCEMENT OF DECREES IN EQUITY 

and its collateral applications in other fields ^ would have been 
obviated. In England the legislature conformed the law on 
the specific point of escheat of cestui que trust's interest, by 
statute in 1884,^ providmg that in the event of any person's 
dying intestate and heirless in respect of any real estate 
consisting of an equitable interest, whether it is devised by 
him to trustees or not, the law of escheat is to apply in the 
same manner as if the estate or interest were a legal estate 
in corporeal hereditaments. 

While the development of the trust doctrine was thus 
bringing out the resemblance between equitable estates and 
legal estates as to the incidents of each, a similar development 
was extending the protection of the estate of cestui still 
further against incidents aftecting the legal estate of the 

trustee. 

The question whether, when a trustee suffered an escheat, 
the property held in trust would go to the lord free of the 
trust, had been discussed as early as 1666 by Lord Bridge- 
man, who, in a dictum in Geary v. Bearcroft,^ is reported ^ 
to have said: " A man conveys land in trust and the trustee 
commits felony, these lands shall be forfeited, though he 
may have relief in equity. ' ' A similar view was expressed by 
Sir John Trevor in Eales v. England.^ " Here B is but a trus- 

K. 19s, and other cases cited in Ames, Cases on Trusts (2d ed.) 315 (n. i); cf. also 
Cave V. Mackenzie, (1877) 46 L. J. Rep. Ch. 564, and cases cited in Ames, Trusts, 

309, n. 2. 

1 See for example the problems in constitutional law, conflict of laws, and real 
property law raised in the cases of Fall v. Eastin, (1905) 75 Nebr. 104; s.c, (1909) 
215 U. S. i; Selover, Bates & Co. v. Walsh, (1912) 226 U. S. 112; Bank of Africa, 
Ltd. V. Cohen, (1909) 2 Ch. 129, 143; London, &c., Ry. Co. v. Gomm, (1874) 20 Ch. 
D. 562, 580: — cases cited by Professor Hohfeld, Some Fundamental Legal Con- 
ceptions, (1913) 23 Yale L. J. 16; and also Gray, Rule against Perpetuities (2d ed.) 
252, 254'; Woodall V. Clifton, (1905) 2 Ch. 257, 264, 265; MacKenzie v. Childers, 
(1889) 43 Ch. D. 265, 279. 

2 47 & 48 Vict., c. 71, §4- 3 Carter 67. 

* But see note by Eden in his report of Burgess v. Wheate (i Eden 177, 230), 
doubting the accuracy of the report. 
5 (1702) Prec. in Ch. 200, 202. 



THE DEVELOPMENT OF EQUITABLE INTERESTS lOJ 

tee which will not prejudice cestui que trust: if the trustee 
die without heir the lord by escheat will have the land at 
law, yet subject to the trust here." Of course the majority 
of the court in Burgess v. Wheate held an opinion contrary 
to this/ and it was left to Parliament to settle the question, 
which it did in 1834 by recognizing, as in other cases, that 
the misfortune of the trustee should not affect the rights of 
cestui que trust.^ 

The question whether cestui que trust should suffer if the 
trustee forfeited his estate for treason was indirectly decided 
in Pawlett v. Atty. Genl.,^ a case of a mortgage. The 
mortgagor's equity of redemption was protected against a 
forfeiture for treason by the mortgagee. Baron Hale 
decided in favor of the mortgagor on the ground that *' a 
power of redemption is an equitable right inherent in the 
land, and binds all persons in the post or otherwise. Be- 
cause it is an ancient right which the party is entitled to in 
equity." He expressly distinguished an equity of redemp- 
tion from a trust on the ground that " they only are bound by 
a trust who come in in privity of estate. A tenant in dower 
is bound by it because she is in the per, but not a tenant by 
the curtesy, who is in the post.'' (p. 467.) The distinction 
was perhaps justified in 1667 on the state of the authorities,"* 
but the argument on the merits is the same in both cases. ^ 
Here again Parliament settled the doubt in favor of protect- 
ing cestui que trust.*^ As to the protection of cestui from 
creditors of the trustee, the doctrine on this point was 
rounded out by the decision that even the bankruptcy of the 
trustee did not affect the rights of cestui.'^ 

' See 201-203. ^ 4 & 5 Wm. IV, c. 23, and cf. 13 & 14 Vict., c. 60, §§ 15 and 19. 

' Hardres 465. ^ Cf. Mansfield's remarks in Burgess v. Wheate, 222. 

* See Sanders, Uses, 253; and cf. Dixon v. Savile, (1783) i Bro. C. C. 325, 
more fully reported and discussed 2 Pow. Mort. 693, ist American ed. (1826) from 
6th English ed. 

6 4&S Wm. IV, c. 23. 

^ Ex parte Chion, (1721) 3 P. W. 186, n. 



I08 THE ENFORCEMENT OF DECREES IN EQUITY 

There remained still a line of authority, on which the con- 
servatives laid much stress, in support of the doctrine that 
only those claiming in some sort of privity with cestui are 
bound by the trust — or, to put it in other words, that 
cestui's rights were personal, given only against the trustee 
and those claiming under him: " in the per,'' as the judges 
put it, and not " in the post.'' This doctrine was a founda- 
tion stone of Coke's theories, and the case usually vouched 
for it was Sir Moyle Finch's Case, reported in Coke's Fourth 
Institute : ^ a case of disseisin, in which the common-law and 
exchequer judges to whom the case was referred by Queen 
Elizabeth held that a disseisor of a trustee was not bound by 
the trust. The authority of the case as a basis for equitable 
doctrine is, however, weakened by several considerations. 
In the first place, the decision was by the common-law judges, 
overruHng the Chancellor, who had decreed for the plaintiff. 
Again, its reasoning is based on a doctrine of the non-assign- 
ability of trusts, soon to be obsolete, if it ever was really a 
Chancery doctrine;- and moreover, the decision was in part 
due to the opinion of the judges that the case, since it 
involved the determination of a right of inheritance of free- 
hold, was not one for Chancery to deal with in any event. 
But another ground for the decision was that the disseisor 
was in the post (p. 86). He did not, in other words, claim 
through the trustee, but by an original though wrongful 
title of his own, which was adverse to the trustee's and not 
derivative.^ This is the doctrine emphasized in Gilbert's 
great book on Uses and Trusts.^ "... A disseisor comes 
into the same estate but not by contract or agreement, and 

^ (1600) Fourth Inst., 86. 

2 See p. loi, n. i ; Jenks, Short History, 295, 296; Scrutton, Land in Fetters, 83-84. 

3 Cf. Chudleigh's Case, (1589) i Rep. 120a, per Popham, 139&. 

* Baron Gilbert's book (1734), it may be remarked, by its uncompromising 
enunciation of the old doctrine of privity in a work of great learning and authority, 
did very much to continue the tradition begun by Coke. The influence of the book 
was enhanced by the learning and ability of its editor, Lord St. Leonards (ed. of 



THE DEVELOPMENT OF EQUITABLE INTERESTS IO9 

therefore he is in the post — i. e., claims not b>' or from the 
feoffee " (p. 177). '* A disseisor cannot stand seised to a 
use, there being no privity of estate nor confidence, and so no 
ground to subpoena him to Chancery, and the}' cannot there 
take notice of his title for they are not there to determine the 
right of inheritance " (p. 201).^ The case of the disseisor, 
then, seems to furnish a test case as to whether cestui's 
estate is one independent of the trustee's or is essentially not 
an estate at all, but only a right to have the trustee use the 
latter's estate for the former's benefit. 

If the second view is sound, then the statement of Lord 
St. Leonards in 181 1 is still true: 

At this day everyone is bound by a trust who obtains the estate 
without a valuable consideration, or even for a valuable consideration 
if with notice, unless perhaps the lord by escheat. But persons claim- 
ing the legal estate by an actual disseisin, v^ithout collusion with the 
trustee, will not be bound by the trust. Therefore, if I oust A, who 
is a trustee for B, and a claim is not made in due time, A will be barred, 
and his cestui que trust with him, although I had notice of the trust.^ 

But a new development in equity doctrine was undermin- 
ing this position — the doctrine usually spoken of as the 
Rule of Tulk v. Moxhay.^ This rule referred to negative 
covenants imposing an equitable burden upon land. As 
stated by Lord Cottenham in the principal case, the rule is: 
" If an equity is attached to the property by the owner, no 
one purchasing with notice of that equity can stand in a 
different situation from the party from whom he purchased."'* 

181 1). A typical passage, setting forth, in language quite unqualified by the prog- 
ress of equitable doctrine since the Statute of Uses, the doctrine that a trust is a 
mere confidence in the person of the trustee, is found on pp. 177-178. 

I The authorities cited by Gilbert here, and in other passages on the subject, are 
Coke's Reports and Institutes. Cf. also 169, 228, and Sugden's note, 228, in Sugden's 
ed. 

* Gilbert Uses (Sugden's ed.) 249, editor's n.; and cf. Lewin, Trusts (11 ed.) 

274-275- 

=• (1848) 2 Ph. 774- 

* That this is a proper statement of the doctrine of the case is shown by the 



no THE ENFORCEMENT OF DECREES IN EQUITY 

For some time the case of Txilkv. Moxhay was regarded by a 
large number of the judges and members of the bar as laying 
down a rule that a restrictive covenant imposed a burden 
on the conscience of the assignee. But the theory which 
seems now to have prevailed is the one first exphcitly set 
forth in Sir George Jessel's well-known decision in London & 
Southwestern Ry 2;. Gomm/ in which he explained the nature 
of the equitable burden as " either an extension in equity of 
the doctrine of Spencer's case - to another line of cases, or 
else an extension in equity of the doctrine of negative ease- 
ments," and added: " The purchaser took the estate sub- 
ject to the equitable burden, with the qualification that if he 
acquired the legal estate for value without notice he was 
freed from the burden. That qualification, however, did not 
affect the nature of the burden, the notice was required 
merely to avoid the effect of the legal estate, and did not 
create the right; and if the purchaser took only an equitable 
estate he took subject to the burden whether he had notice or 
not." (p. 583.) ' 

The latest chapter in the long story is that which turns 
upon the case of In re Nisbet and Potts' Contract.^ In 1903 
Potts bought land from Nisbet under a special agreement 
providing that the title to the property should commence 
with a deed dated in 1890, in which deed it appeared that one 
of Nisbet's predecessors in title had acquired a title by 
possession under the Statute of Limitations. Potts agreed 
to be considered as having full notice and knowledge of this 
deed, and to be bound thereby. An abstract was delivered 

language of Lord Lindley in Hall v. Ewin, (1887) 37 Ch. D. 74, 81 : " The principle 
of Tulk V. Moxhay imposes a burden on the land." 

1 (1874) 20 Ch. D. 562. 

2 5 Rep. 1 6a. 

2 For fuller discussion of the general doctrine of Restrictive Covenants than the 
limits of this essay will permit, see Ashburner, Principles of Equity, 507-513; and 
Jolly, Restrictive Covenants Affecting Land, especially Chap. II. 

* (190s) I Ch. 391; (1906) I Ch. 386 (C.A.). 



THE DEVELOPMENT OF EQUITABLE INTERESTS I 1 1 

which did not show the existence of any covenants restrict- 
ing the use of the land, but Potts later learned from other 
sources that in 1872 the man then in possession of the land, 
against whose heirs the title by possession had been acquired, 
had entered into covenants restricting building on the land. 
On this ground Potts claimed the right to rescind the con- 
tract. Nisbet contended that he had purchased in 1901 
without notice of the restrictions, having then accepted a 
title commencing in 1878; and having regard to this and to 
the fact that his own and his vendor's title was founded on 
adverse possession, the restrictive covenants no longer bound 
the land. Had Nisbet insisted on and obtained a forty-year 
title, he would have had notice of these covenants. 

Two distinct questions were raised by these facts : had the 
vendor, Nisbet, constructive notice of the covenants; and 
if so was he bound by them ? As to the former it was held 
that he had such notice. He had contented himself with 
limiting his inquiries to the situation subsequent to 1878. 
But, as the court pointed out, if he chose to take less than a 
forty-year title " he cannot by so restricting his investigation 
and by not inquiring into the title for the full period of forty 
years say that he is not affected with notice of such equities 
affecting the land as he would have ascertained by reasonable 
inquiries into the title for the earlier part of the forty 
years." ^ But the other question still remained. Even if 
the vendor had notice of the restrictive convenant, was he 
bound by it ? He was a purchaser from a disseisor, who was 
not only not in privity with his disseisee but adverse to him. 
His title was entirely independent of relation with that of the 
disseisee, who had entered into the covenant. But the 
opinion not only of Farwell, J., in the court of first in- 
stance, but also of Collins, M.R., Romer, L. J., and Cozens- 

* Per Romer, L. J., in Ct. of App. (1906) i Ch. 386, 408, and cf. Cox and Neve's 
Contract, (1891) 2 Ch. 109. 



112 THE ENFORCEMENT OF DECREES IN EQUITY 

Hardy, L. J. — the unanimous court of appeal — was that 
the disseisor and Nisbet, the purchaser from him, were alike 
bound by it; and this on the ground that the equitable rights 
of the persons entitled to the restrictive covenants were not 
extinguished by the Statute of Limitations, since they were 
rights in rem, good against aU but bona fide holders of legal 
title for value — which of course the original disseisor and 
Nisbet were not.^ 

The language of Farwell, J., is very pointed: 

It is clear, therefore, that the person entitled to the benefit of the 
restrictive negative covenant over Blackacre has an equitable interest 
in Blackacre, and that such interest has the same nature and qualities 
as any other interest in land in respect of priority, notice, and the 
Uke, but that notice forms no part of the cause of action in respect of 
such equitable interest. The plaintiff's claim depends on the validity 
and priority of his own charge, not on any notice unless and until the 
owner of the land sets up as a defence the plea of purchase for value 
without notice and with the legal estate. 

Farwell, J., definitely repudiates the idea that the person to be 
bound by the covenant must derive title from the covenantor,^ 
and after pointing out that the disseisor here was not a pur- 
chaser for value, continues : 

He could not therefore have set up any want of notice as an 
effectual defence to an action to enforce the restrictive convenants 
against him, and I am of opinion, therefore, that the land in his hands 
was bound by these covenants. 

Again Farwell, J., held that the burden of the covenants 
was paramount to the estate of the dispossessed owner, and 
that the case was really analogous to that which would arise 
where a disseisor enters on land subject to a legal easement. 
There of course the disseisor takes the land subject to the 
easement. 

1 Cf. Farwell, J., at 399, (1905) i Ch. 391. ^ Cf. 398. 



THE DEVELOPMENT OF EQUITABLE INTERESTS II3 

This opinion after very careful consideration, since the 
Judges recognized avowedly the importance of the decision/ 
was unanimously affirmed in the Court of Appeal. Collins, 
M. R., discussed the argument of the appellant's counsel that 
the disseisor came in by paramount right and so should not 
be held bound by obligations binding on the disseisee, and, 
relying on Sir George Jessel's reasoning in London & South- 
western Ry. V. Gomm," held that the restrictive covenant 
created a paramount right in the nature of a negative ease- 
ment in the person entitled to it over the land to which it 
related — a genuine right in rem with a correlative duty, 
which, as he said, would pass to all persons who subsequently 
became assignees of the land. Romer, L. J., emphasized 
more than once in his opinion the doctrine that the covenant 
bound the land in equity, and could " be enforced as against 
subsequent owners of the land, subject only to the limitation 
that, being equitable, it cannot be enforced as against a 
bona fide purchaser of the land — that is to say of the legal 
estate — without notice " (p. 405)- 

It may be urged that this is not a holding as to trusts, but 
only as to restrictive covenants; but despite a possible sug- 
gestion by Romer, L. J., that there is a distinction, (see p. 
407) there seems no vaHd ground for any position other than 
that any argument that a restrictive covenant confers an 
equitable right in rem will a fortiori be true of a trust; and 
indeed this is now admitted by everyone/ including even the 
most vigorous opponents of the decision.^ 

In the definiteness with which it repudiates the idea that 
equitable rights are merely rights in personam against an 

^ Cf. 409, per Cozens-Hardy, L. J. 

2 20 Ch. D. 562. 

' Lighlwood in 13 Lau-s of England, Art. Equity, 89, n. 5: "The principle 
applies equally to a trust." 

* See the matter discussed at length by Mr. T. Cyprian Williams in 51 Sol. J. 
155 (1906). 



114 THE ENFORCEMENT OF DECREES IN EQUITY 

obligor and those in privity with him, this case may fairly 
be said to mark the complete abandonment in the English 
courts of the theory to which Coke had lent the weight of his 
learning and his name. 

§ 2. The Doctrine of the Bona Fide Purchaser 

Thus gradually, by slowly widening circumvallations, 
protection has been thrown around the interest of cestui in 
the trust estate of which he is the beneficiary. Equity gives 
him rights not only against the trustee who is bound to him 
by the trust obligation, but also against those classes of 
persons who may be said in some large use of the word to be 
in privity with the trustee : — the trustee's heir, his donees, 
purchasers of the legal estate from him for value but with 
notice of the trust, his creditors, his assignee in bankruptcy; 
even against his widow in her claim of dower. Going still 
further, equity protects cestui's interest against the lord of 
the trustee, who may not take by escheat or by forfeiture 
the land to which the trustee holds the legal title; and now 
against a disseisor, whose title is not in any sense, however 
remote, derivative from the trustee's. But a crucial matter 
still remains. It is still contended that the rights of cestui, 
in spite of the generality of their incidence, are not rights in 
rem; for cestui's claim to the property is not protected 
against a bona fide purchaser of the legal title for value 
without notice. After all, it is urged, the right is only a 
right in personam against the trustee; for if the trustee sell 
to a bona fide purchaser for value and convey to him the 
legal title, cestui has no longer any claim to the trust property 
as against this purchaser, but is remitted to his remedies 
against the disloyal trustee for his breach of the trust obliga- 
tion. As Professor Langdell tersely phrased the argument, 
*' If equitable rights were rights in rem they would follow 
the res into the hands of a purchaser for value and without 



THE DEVELOPMENT OF EQUITABLE INTERESTS I I 5 

notice." ^ This is the gist of the contention of those num- 
erous and distinguished jurists who hold with Langdell, 
Ames, Holland, and Alaitland that albeit the rights of cestui 
resemble with deceptive closeness genuine rights in rem, they 
are still essentially only rights in personam? It is of course 
true that if a purchaser for value, in good faith and without 
notice, acquires the legal title to the trust res, cestui's estate 
in the property will not be protected against him, even if the 
trustee by parting with the legal title had intentionally 
violated his duty to cestui que trust. For this violation of 
duty cestui has a remedy against the trustee, but he cannot 
reclaim the trust res from the bona fide purchaser of the legal 
title. Hence, it is argued, we may arrive at a conception 
of the right of cestui. It is a personal one against the trustee, 
and it is not a right in rem, since, as anyone may be a bona 
fide purchaser, there are an indefinite number of persons 
against whom the rights of cestui cannot be enforced."^ 

But of course it will be admitted that the existence of a 
personal right against the trustee — a genuine obligation- 
right — may be consistent with the possession by cestui of 
rights in rem also. He may have a personal right against 
the trustee and property rights in the res, just as a principal 
has rights in personam against his agent and rights in rem 
against persons generally as to the property he has entrusted 
to that agent. It is not determinative of the question 
whether or not cestui has rights in rem, that he has also 
rights in personam against his trustee. 

We have thus perhaps cleared the ground for an examina- 
tion of the doctrine that a bona fide purchaser for value of the 
legal title takes the property in which cestui was beneficially 
interested free of any claim by cestui que trust. It is 

' I Harv. Law Rev. 60. 

- See Collection of authorities by Mr. Hart in his article: The Place of the 
Trust in Jurisprudence, 28 Law Quart. Rev. 290 (191 2). 

^ Cf. Hart, The Place of the Trust in Jurisprudence, 28 Law Quart. Rev. 290. 



Il6 THE ENFORCEMENT OF DECREES IN EQUITY 

important to notice that the doctrine involves both the bona 
fides of the purchaser and the obtaining by him of legal title, 
or at least of the best right to call for it. Bona fides on the 
part of the purchaser is insufficient if all he has bought is an 
equitable title. It is obviously, then, the acquisition of the 
legal title in good faith that overthrows the rights of cestui 
que trust. Free the matter of the complications introduced 
by the respect which a court of equity pays to the legal title 
— a doctrine quite independent of the doctrine of bona fide 
purchaser, and resting on an entirely distinct historical 
basis ^ — and we find, not that the bona fide purchaser of an 
equitable estate gets a claim which will prevail against prior 
equitable holders, nor that their equities will be cut off by the 
transfer to him for value without notice, but on the contrary 
that the first equitable owner's rights are paramount unless 
doctrines as to estoppel, notice, or registration come in. 

But the argument that cestui's rights are purely personal 
ones against the trustee is based upon a special interpreta- 
tion of the bona fide purchaser doctrine which is inconsistent 
with these latter cases. That interpretation is as follows: 
the reason why equity in any case disregards the claims of the 
nominal owner against the equitable owner is an ethical one. 
Mr. Ames puts it thus: ^ " Equity decrees that the defend- 
ant surrender what in justice he cannot keep. A decree 
against a mala fide purchaser or a volunteer is obviously just, 
but a decree against an innocent purchaser who has acquired 
the legal title to the res would be obviously unjust." Here, 
as generally, the saving phrase of " the legal title " emerges 
but the argument is clearly independent of this. It is the 
bona fides of the purchaser which determines that equity 
will safeguard him against cestui que trust whose trustee 
has betrayed his trust. Cestui, having no rights as to the 
trust res against people generally, but only personal rights 

' Vide infra p. 131 et seq. ^ Lechires on Legal History, 76. 



THE DEVELOPMENT OF EQUITABLE INTERESTS II7 

against his trustee or those in collusion with him either 
actually or by imputation of law because claiming through 
him, is now relegated for redress to the enforcement against 
the trustee of the remedial rights the law gives him for the 
infringement of the trust obligation. 

That this interpretation of the personal view is a fair one is 
shown by Professor Ames's later treatment of the subject. 
In his article on Purchase for Value without Notice/ he sets 
forth in fuller form his doctrine. 

A court of equity will not deprive a defendant of any right of 
property, whether legal or equitable, for which he has given value 
without notice of the plaintiff's equity, nor of any other common-law 
right acquired as an incident of his purchase. In all other cases the 
circumstance of innocent purchase is a fact of no legal significance. 

The rule just given is simply an application of that comprehensive 
principle which lies at the foundation of constructive trusts and other 
equitable obligations created by operation of law . . . namely, that 
a court of equity will compel the surrender of an advantage by a 
defendant whenever, but only whenever, upon grounds of obvious 
justice, it is unconscientious for him to retain it at another's expense. 
Indeed, it is not too much to say that the purchaser of a title from one 
who holds it subject to an equity is always charged, if chargeable at all, 
as a constructive trustee. If he acquired the title with notice of 
another's equity his acquisition was dishonest, and he must, of course, 
surrender it. If he gave no value, though his acquisition was honest, 
his retention of the title, after knowledge of the equity, is plainly dis- 
honest. If he gave value, and had no notice of the equity, it is 
eminently just for him to keep what he has got. 

Here we see the real bearing of the doctrine of bona fide 
purchaser: — it is an application of the old doctrine of 
privity. It is not unconscientious for a bona iide purchaser 
for value without notice to hold a trust res, because he does 
not claim under the trustee. He therefore gets a better 
right than cestui, who can claim only through the trustee, 

• Lectures on Legal History, 253; reprinted from Hurv. Law Rai. for April, 
1887, with MS. additions by the author. 



Il8 THE ENFORCEMENT OF DECREES IN EQUITY 

who was bound by a trust obligation to hold for him. But, 
to repeat: if this were true the doctrine should apply not 
only equally but a fortiori to the bona fide purchaser of an 
equitable title. It is elementary that equitable rights may 
be held in trust. Now, if a bona fide purchaser for value of a 
legal estate is preferred in equity to cestui que trust of the 
property the legal title to which he purchased, and is pre- 
ferred because of his superior equity — the bona fide acquisi- 
tion of the title, — then it would seem a fortiori true that the 
bona fide purchaser of an equitable estate (e. g., an equity of 
redemption held in trust) should be preferred to cestui que 
trust of this equitable estate. A court of equity surely 
would have a greater duty to throw the protection of its 
bona fide purchaser doctrine over the purchaser of a right 
recognized only or primarily in equity. But as a matter of 
fact, the great weight of authority is to the effect that when 
a court of equity has to decide between two equitable titles, 
as for instance where T, being trustee for C of an equity of 
redemption, sells it to B, a bona fide purchaser for value 
without notice, the purchaser's good faith avails him nothing. 
He cannot set up against C that he is a bona fide purchaser 
for value. In other words, the right that C has is not merely 
one against T but also against B, despite the fact that it 
would not be unjust for B to retain what he had innocently 
purchased, — or, as Mr. Ames puts it, even " eminently just 
for him to keep what he has got." Strip the problem of the 
complicating circumstances of the acquisition of the legal 
title and the true proprietary character of C's rights appears. 
Thus in the case of Cory v. Eyre,^ the Duke of Buckingham 
was equitable owner of certain lands, the legal title being 
vested in encumbrancers who had advanced him large sums 
on the security of the estates. He borrowed further sums 
from one Sadlier, who took a mortgage of Buckingham's 

1 (1863) I De G. J. & Sm. 149- 



THE DEVELOPMENT OF EQUITABLE INTERESTS II9 

equitable estate and declared himself a trustee for Eyre. 
Sadlier later transferred the mortgage to Cory, a purchaser 
for value without notice, and delivered the deed to him. It 
was held, in the absence of evidence that Eyre had notice of 
the dealings of Sadlier with the security, that E}Te, cestui 
que trust, was entitled to priority over Cory, the bona lide 
purchaser. 

The theory that the rights of cestui que trust are rights 
in rem furnishes the only adequate rational explanation of 
the doctrine of the case, that equities rank in order of time. 
In the words of Turner, L. J. (p. 167) : 

Questions of priority between equitable encumbrancers (and the 
encumbrances both of the plaintiffs and of the defendants in this case 
are equitable, the legal estate being . . . outstanding) are in general 
governed by the rule, qui prior est tempore potior est jure; and in 
determining cases depending on the rule we must of course look at the 
principle on which the rule is founded. It is founded, as I conceive, 
on this principle, that the creation or declaration of a trust vests an 
estate and interest in the subject-matter of the trust in the person in 
whose favor the trust is created or declared. Where, therefore, it is 
sought as in the present case, to postpone an equitable title created by 
declaration of trust, there is an estate or interest to be displaced. No 
doubt there may be cases so strong as to justify this being done, but 
there can be as little doubt that a strong case must be required to 
justify it. 

What such a case would be is well set forth in the opinions 
of Lord Chancellor Cairns and Lords Hatherley and O'Hagan 
in the important case of The Directors of the Shropshire Rys., 
etc. Co. V. the Queen. ^ In that case one Holyoake, who held 
in his name shares of stock in trust for the defendant direc- 
tors, had deposited the certificates with one Robson for 
security, and had covenanted to secure a legal mortgage of 
the shares on request. Robson 's widow applied for a 
mandamus to compel the defendant to transfer the stock to 

1 (1875) L. R. 7 H. of L. 496. 



I20 THE ENFORCEMENT OF DECREES IN EQUITY 

her name. Robson had acted bona fide, and was without 
knowledge or notice of the fact that Holyoake was only a 
trustee. The court found that, in Lord O'Hagan's words, 
they had before them " a net and naked question arising 
upon a conflict of equitable interests " (p. 514). Lord 
Hatherley referred to Cory v. Eyre (supra) as laying down 
" very justly the principle in these matters," and continued: 

In the eyes of a court of equity the cestuis que trust (in this 
case the defendants) are the owners of the property . . . The only 
question to ask oneself in these cases is, what has been the conduct 
of the real owner in equity, the person who has possessed the inter- 
est ? Has he forfeited his right ? (pp. 51 1-5 12.) 

The ways in which cestui que trust, the real owner, might 
forfeit his right were briefly put by Lord O'Hagan (p. 514) : 

On the cases we must find in their proceedings something of mis- 
conduct or fraud or negligence, to justify the postponement of their 
claim. 

Or, as Lord Chancellor Cairns phrased it, (pp. 506-507) : 

That pre-existing equitable title may be defeated by a supervening 
legal title obtained by transfer. And I agree with what has been 
contended, that it may also be defeated by conduct, by representa- 
tions, by misstatements of a character which would operate and inure 
to forfeit and to take away the pre-existing equitable title. But I 
conceive it to be clear and undoubted law, and law the enforcement of 
which is required for the safety of mankind, that, in order to take 
away any pre-existing admitted equitable title, that which is relied 
upon for such a purpose must be shown and proved by those upon 
whom the burden to show and prove it lies, and that it must amount 
to something tangible and distinct, something which can have the 
grave and strong effect to accomplish the purpose for which it is said 
to have been produced. 

No case in the books brings out more clearly than this one 
the fact that the superior claim of the bona fide purchaser is 
due to the respect paid in a court of equity to the holder of 
the legal title. This opinion of Lord Chancellor Cairns is 



THE DEVELOPMENT OF EQUITABLE INTERESTS 121 

the classic exposition of the true relationship between the 
trustee, cestui, and the bona fide purchaser. He says (pp. 
505-506) : 

The defendants had the whole beneficial interest in the stock. . . . 
Theirs was the equitable title. Holyoake (the trustee) was a person 
who held merely the legal title and the right to transfer the stock. He 
was able, if not interfered with, to transfer the stock to any other 
person, and to give a vahd receipt for the purchase-money to any 
person who had not notice of the beneficial interest of the defendants. 
On the other hand, any person with whom Holyoake might deal . . . 
had, or ought to have had, these considerations in mind. He ought 
to have knowTi that ... it was perfectly possible either that these 
shares were the beneficial property of Holyoake himself, or that they 
were the property of some other person. If he dealt merely by equi- 
table transfer, or equitable assignment with Holyoake, and if it turned 
out that the beneficial ownership of Holyoake was coincident and 
co-e.xtensive with his legal title, well and good; his right would be 
accordingly, so far as Holyoake was concerned, complete. But if 
... it should turn out that Holyoake's beneficial interest was either 
nil, or was not co-extensive with the whole of his apparent legal title, 
then I say any person deahng with Holyoake, by way of equitable 
bargain or contract, should have known that he could only obtain a 
title which was imperfect, and would not bind the real beneficial 
owner. And, my Lords, he also might have known, and should have 
known, this, that if he desired to perfect his title, and make it entirely 
secure, ... he had only to take Holyoake at his word. If Holyoake 
represented that he was the real owner of these shares, the proposed 
transferee had only to go ... to the company, and to require a 
transfer of those shares from the name of Holyoake to his own name. 
If he had obtained that transfer, and the company had made it, no 
question could have arisen, and no litigation could subsequently have 
taken place. 

But Lord Cairns is not only definite on the proprietary 
interest of cestui que trust in the property held in trust. He 
is also definite in his repudiation of the idea that a trustee has 
such control of the property interest that one who in good 
faith acquires the trustee's interest in equit}- has a superior 



122 THE ENFORCEMENT OF DECREES IN EQUITY 

claim to the property over cestui. He describes the argu- 
ment for the priority of the bona fide purchasers over the 
equitable owners as amounting to a statement that a person 
who was entitled to the whole equitable interest ought not 
to have a trustee at all holding the indicia of a legal owner- 
ship, or if he did choose to have such a trustee he must be in 
danger of suffering for every act of improper conduct by that 
trustee, and would be bound, for instance, in the case of a 
share standing in a trustee's name, " not merely by a valid 
legal ^ transfer of that share by the trustee, but by any 
equitable dealing or contract which the trustee might choose 
to enter into." '' My Lords," he continues, " that is a very 
serious proposition; " and he finds, he says, no authority 
for such a proposition, (p. 507.) 

These cases represent not only the EngHsh but also the 
clear weight of American authority.^ They amount, it is sub- 
mitted, to a demonstration that it is not because equity feels 
that a bona fide purchaser has a superior equity, by virtue of 
his independence of the trustee's duty, that he is permitted, 
in case he has acquired the legal title, to take free of any 
claim, but merely because he has acquired the legal title 
from one who has been given a power to transfer it, and 
because equity respects such legal title as superior to the 
equitable title which a court of equity otherwise upholds in 
cestui. 

Further light is thrown on the real nature of the doctrine of 
bona fide purchaser by an examination of the limits within 
which a plea of bona fide purchase for value without notice is 
a vahd defence against the assertion of cestui's right. It is 
necessary, in the first place, that the bona fide purchaser 
must have actually acquired the legal title by having convey- 
ance made to him. The drawing of the articles of convey- 

1 Italics supplied by the author. 

2 See cases collected in Ames, Cases on Trusts, 305, n. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 1 23 

ance is insufficient.^ So again, even if the purchase money 
has been paid, the equitable owner will still be protected 
against the purchaser if the latter receives notice of the 
situation before the conveyance has been made.- The 
insistence on the acquisition of the legal title thus illustrated 
shows again the really important element in the doctrine 
under discussion. The purchaser is innocent. He has made 
his contract, or has even paid his money, in good faith. It 
can hardly be argued that it would be inequitable for him to 
claim whatever the trustee had. But he gets no equitable 
ownership of the trust property from his transaction with the 
trustee — all he has is his claim against the trustee personally. 
The real property right of cestui in the trust prevails. It is 
submitted that not only the ratio decidendi of the cases, but 
also the very language of the decisions, where they do more 
than state the rule, support this view.^ 

Purchase, too, is insufficient unless the purchase money has 
actually been paid before the purchaser receives notice of 
cestui's rights. His good faith is no less than if the trans- 
action had been a cash one, but value has not been passed.^ 
Moreover, not only value but the entire value agreed upon 
must be paid over before notice is received. Partial pay- 
ment in good faith, at least by the great weight of American 
authority, is sufficient only to give the purchaser who learns 
of the trust before completing his payment a lien on the 
property, a right against the equitable owner for reimburse- 
ment of what he paid in good faith. ^ 

1 Brandlyn v. Ord, (1738) i Atk. 571. 

2 Wigg V. VVigg, (1739) I Atk. 384; and cases collected in Ames, Cases on Trusts 
(2d ed.) 288. 

3 Cf. Jones j;. Stanley, (1731) 2 Eq. Abr. 685, pi. 9; Villa v. Rodriguez, (1870) 12 
Wall. 323, 338; Wood V. Mann, (1833) i Sumn. 506, 509, per Stoty, J.; and cf. also 
language of Sir Samuel Romilly, of counsel, in Mackreth v. Simmons, (1808) 15 Yes. 

329-335- 

'' Tourville v. Naish, (1734) 3 P. W. 306. 

^ Tourville v. Naish, (1734) 3 P. W. 306, 307; Florence Co. v. Zeigler, (1877) 58 
Ala. 221; and other cases collected in Ames, Cases on Trusts, 288. 



124 THE ENFORCEMENT OF DECREES IN EQUITY 

One is forced, then, to seek some other explanation of the 
doctrine of bona fide purchase than that it is an effort on the 
part of courts of equity to protect the interest of one who had 
acquired a right in the land which it was not inequitable for 
him to retain. Such an explanation fails in two particulars. 
It is, as we have endeavored to show, an inaccurate account 
of the reasons why cestui loses his rights as beneficiary of 
the trust. Furthermore, it is an inadequate account of the 
extent and purpose of the doctrine of bona fide purchaser. It 
does not explain the fact that some purely legal rights, ad- 
mittedly rights in rem, also fall before a bona fide purchaser. 
No theory of equitable dealings or of the limits of what is and 
what is not conscientious action explains the doctrine that 
the bona fide purchaser of a chattel in market overt acquires 
title, free of the claims of even a legal owner; ^ or the doctrine 
that one who has in good faith received money in payment 
of a debt ^ or who has in good faith taken a negotiable instru- 
ment for value,^ acquires good title to the money or the 
negotiable instrument. These are all doctrines indigenous 
in the common law. And similar doctrines, though not 
native there, have been naturalized from equity and are 
now fully recognized as common-law doctrines. A bona fide 
purchaser for value of goods from one who acquired them 
under a contract which could be avoided by the original 
owner takes free of the original owner's rights, if he has no 
notice of them at the time of his purchase.^ If a purchaser 
of goods leaves them in the possession of the vendor, an inno- 
cent purchaser from the vendor in possession in many juris- 
dictions gets a title good against everyone, including the 
former purchaser.^ If a principal gives to his agent a power 

1 Case of Market Overt, (1595) 5 Co. Rep. 83J. (Cf. French Cml Code, § 228c). 

2 Higgs V. Holiday, (1578) Cro. Eliz. 746. 

3 Anon., (1697) I Salk. 126. •* Parker v. Patrick, (1793) 5 T. R. 175. 

° See Mechem, Sales, §§ 167, 981, 982. Compare Sale of Goods Act, 56 & 57 
Vicl. c. 71 § 25 (i); Sales Act (American) § 25. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 1 25 

to sell the former's property, but limits the agent's authority 
by special instructions, one who in good faith purchases in 
ignorance of these contract limitations on the agent's power 
acquires a title even against the principal.' 

Statutes have still further extended this power of one who 
has not himself title to property to give to the person who in 
good faith purchases from him for valuable consideration, a 
title good against even the original owner. Thus Factors' 
Acts, now very general, provide that under certain circum- 
stances specified in the acts bona fide purchasers may get a 
title to property which has been dealt ^vith by factors in 
violation of their duty to their principal.- Bills of Lading 
Acts have given wider scope to the doctrine of negotiability 
of such commercial instruments as bills of lading and ware- 
house receipts.^ A beginning has been made toward similar 
legislation with respect to shares of stock. Perhaps, how- 
ever, the closest parallel to the situation in the case of trusts 
is found in that which may arise under modern recording acts. 
A transferor of land who has made a valid transfer of title 
out of him, by a proper instrument, to one transferee, may 
wrongfully give a second deed to a bona fide purchaser, 
which, on being registered under the provisions of the record- 
ing act, will yet give good title to the bona fide purchaser 
if recorded sooner than the deed given to the earlier trans- 
feree.'* 

In all these cases it is an earlier legal title which is cut off", 
and the courts of common law will recognize the validity 
of the bona fide purchaser's later title. Nor will it be denied 
that the possessor of the earlier title was the possessor of 
rights in rem. 

^ See Mechem, Agency (2d ed.) § 710. 

2 See Williston, Sales, §§ 318-322 summarizing and discussing the English 
and American legislation. 

' Williston, Sales, §§ 406-407. 

* See Tiffan}'-, The Modern Law of Real Property, § 476 et seq. 



126 THE ENFORCEMENT OF DECREES IN EQUITY 

Two ideas result from a consideration of these cases. In 
the first place, it should be clear, as indeed Professor Mait- 
land admitted,^ that the essence of a right in rem is not that 
it is good against all the world, including even a bona fide 
purchaser for value. It is sufficient if it is good generally 
against an indefinite number, as distinguished from those 
available only against specific persons.^ The rights lost as 
well as those gained in the cases just discussed were all really 
rights in rem. Professor Maitland himself cites the case of 
the owner of goods who loses his legal title by a sale in market 
overt or by a sale by a dishonest factor under the conditions 
set forth in the Factors' Acts as cases where rights in rem are 
cut off by a bona fide purchase. 

" But," he says, " really there is a marked difference between the 
two cases — in that of the sale in market overt the buyer gets owner- 
ship, but we do not conceive that he gets it from the seller, for the 
seller never had ownership; while the rule about the effect of a pur- 
chase in rendering equitable rights unenforceable is based on this, 
that the trustee has ownership, and transfers it to the purchaser, and 
that there is no reason for taking away from the purchaser the legal 
right which has thus been transferred to him." ^ 

But one may ask whether this difference is relevant to the 
point under discussion. The point of comparison is that in 
all the cases cited rights can fail to operate against a parti- 
cular individual and yet be none the less rights in rem. The 
question of the way in which the ownership of the property 
transferred comes to the purchaser is beside the point here.^ 

1 Equity, 142-143. 

2 Cf. Austin, Jurispnidence (5th ed.) I, 370; Salmond, Jurisprudence (3d ed.) 
205-209. 

^ Equity, 142-143. 

* Indeed the statement that the trustee has ownership, (in any sense beyond 
control of the legal title), and transfers that ownership to the purchaser, is a ques- 
tionable one in the light of the decisions as to trustees dealing with trusts of equit- 
able estates. See pp. 1 1 7-1 2 1 supra. Here, as in the common-law cases, the law, 
not the vendor, transfers to the bona fide purchaser an estate greater than that of 
the vendor. 



THE DEVELOPMENT OF EQUITABLE INTERESTS I 27 

But has not the last defence of the obhgation theory of 
trusts here been crossed ? Rights may be rights in rem even 
though on some particular individuals (such as the bona fide 
purchaser for value of the legal title) they do not impose a 
correlative duty. 

Mr. Salmond puts it thus: 

In defining a real right as one availing against the world at large, 
it is not meant that the incidence of the correlative duty is abso- 
lutely universal, but merely that the duty binds persons in general, 
and if any one is not bound his case is exceptional. ' 

The real question remaining for explanation is, why is the 
bona fide purchaser not bound ? What is there exceptional 
about his case ? And in the light of the cases just discussed 
the explanation seems clear. Various reasons will account 
for particular ones among these cases. Thus the doctrine 
of estoppel is often appealed to, with perhaps doubtful 
success, in order to explain the power of the agent or factor 
to transfer title to his principal's property.^ An element 
akin to estoppel may perhaps be felt in the defeat of the 
unrecorded conveyance by the diligent and bona fide pur- 
chaser. But the estoppel element is extremely slight, and 
may be entirely absent, in the case of the transfer of negoti- 
able instruments or of property by means of bills of lading, 
warehouse receipts, or stock certificates. Here the larger 
social reason behind all these cases emerges into view. The 
basis of the doctrine of bona fide purchaser is not a principle 
confined to its recognition in courts of equity, and availing 
to cut off equitable titles only, but one which runs through 
the whole fabric of modern law: — an effort to ensure 
security in commercial transactions and acquisitions by 

* Jurisprudence (3d ed.) 208. 

2 See Ewart, Estoppel, Chaps. XXII, XXIII, XXVI; Huff cut, Agency, passim, 
especially, 62-71; and cf. articles by Professor Cook, 5 Columbia Law Rcvieu> 36, 
6 Ibid., 34; and Mr. Ewart. 5 Ibid., 354 and 456. 



128 THE ENFORCEMENT OF DECREES IN EQUITY 

imposing certain responsibilities on owners of property with 
respect to that property as a price of legal protection to their 
interests in it. The French law in its doctrine, Possession 
vaut titre,^ has only gone one step farther in developing the 
idea that in a mercantile community, where exchanges are 
the most characteristic and significant feature of its economy, 
it is more important for the law to protect the dynamic in- 
stitution of exchange by granting certain and safe acquisition 
of ownership than to protect the static institution of prop- 
erty by conferring security of title. Caveat emptor is 
being modified by the change in social conditions into caveat 
dominus: Let the owner take care in the selection and super- 
vision of his agent; let him watch the conduct of his trustee, 
at the risk of losing his property rights through their wrong- 
doing, if the transaction they carry through is with a bona fide 
purchaser.^ The owner, at least in the case of commodities, 
is in a better position to assume this risk than the purchaser; 
and now that recording acts are general in the United States, 
at any rate, the owner of land when he is laid under a duty of 
placing his title on the public record is placed under no 
greater burden of diligence than he ought, in the cause of 
social security, to assume. 

It is to the task of preserving a proper balance between 
these conflicting sets of interests that a major part of the 
law of an economic civilization must be directed; and in the 
fluctuating boundary line between protecting the security of 
enjoyment of ownership and protecting the security of 
acquisition of ownership that one may trace the gradual 

1 Civil Code, §§ 2279-2280 and cf. § 1141. 

2 Cf . Kohler, PMo^o/'^y 0/ Zaw (Albrecht's trans.) 130: " It is a complete mis- 
take to assume that the Roman principle, according to which no one can transfer 
more rights than he himself has, is a universally applicable one, rooted in the nature 
of the matter. That can only be asserted by a superficial legal view. On the 
contrary, it is very easily possible that the successor may acquire more rights than 
his predecessor had; and just in this lies that peculiarity on which the security of 
commerce is based." Cf. also, Ibid., 133. 



THE DEVELOPMENT OF EQUITABLE INTERESTS I 29 

evolution of public policy by the slow process of experi- 
mentation. 

The protection granted the bona fide purchaser both in 
law and equity has not always been the same. At times it 
has been greater than it is today. At one time equity would 
not grant any relief against a bona fide purchaser with 
notice.^ But the law has been definitely otherwise at least 
since Phillips v. Phillips.^ In America, moreover, the 
reprehensible doctrine of tabula in naujragio '^ ne\'er obtained 
a foothold. Even in England some of its extremer applica- 
tions have been exscinded ^ and it may not long survive. 

While on the one hand the responsibility of selection and 
supervision of agent or trustee is imposed on the dominus 
(whether legal owner as in the case of the principal, or 
equitable owner as in the case of cestui) to assist, by insuring 
proper care on the owner's part over his representatives, in 
the protection of the person who may deal with them for the 
property owned; on the other hand elaborate doctrines of 
constructive notice have been formulated to secure a due 
amount of care on the part of the buyer. In the definitions 
of what constitutes constructive notice, found both in legal 
decisions and in statutes, there appears re\'ealed perhaps 
more clearly than elsewhere the essential character of the 
bona fide purchaser doctrine. Equity requires not only bona 
fides of one who acquired a legal title, but also a high degree 
of business prudence. He must, to entitle him to his de- 
fence, have made such inquiries and inspections as a careful 
man of business would, in view of the nature of the transac- 

' Cf. Sugden, Vendor a)id Purchaser {i^th cd.) 791-798; and see Ames, Lcc/Mrei 
in Legal History, 253. 

2 (1861) 4 De. G. F. & J. 208. 

' Ames, loc. cit. 267. This was the doctrine that a bona fide purchaser of a later 
equity without notice of a prior one could protect himself against the earlier claim 
by acquiring for value, or even without consideration, without or even with notice, 
an outstanding legal estate. Cf. Willoughb)', The Legal Estate, ch. 3-5. 

* Ames, loc. cit., 267 and cases in n. 3. 



I30 THE ENFORCEMENT OF DECREES IN EQUITY 

tion.^ So high a standard, indeed, was set by EngUsh courts 
of equity that Maitland dryly remarks: " In reading some 
of the cases about constructive notice we may be incUned to 
say that equity demanded not the care of the most prudent 
father of a family, but the care of the most prudent solicitor 
of a family, aided by the skill of the most expert convey- 
ancer." ^ As a result of the severity of the equitable doc- 
trine, Parliament interfered and attempted to limit by 
statutory definition the cases in which the purchaser should 
be held prejudicially affected by notice.^ Here, again, the 
desire to make conditions of business fairest and most 
encouraging to commercial dealings becomes apparent as 
the influence which has moulded and remoulded the legal 
doctrine to make it fit accurately the existing economic 
situation. 

This, then, is the only adequate explanation of the doctrine 
of bona fide purchaser. In the conflict of interests between 
owners and acquirers of certain special classes of property the 
free circulation of which is of particular business utility, the 
social importance of encouraging transactions, of " prevent- 
ing property from stagnating," has resulted in legal protec- 
tion of the interests of the bona fide purchaser even at the 
expense of the property rights of the previous owner.^ These 
special classes of property tend to become more numerous as 
a nation becomes more industrial and commercial in its 
economy, but they are as yet exceptional. ^ Now, as we have 
already seen, the mere fact of bona fide purchase is insuffi- 
cient, in the case of an equitable estate, to give the purchaser 
priority. He must also have completely acquired the legal 
title to the property in question, to enable him to assert his 

1 See Agra Bank v. Barry, (1874) L. R. 7 H. L. 135, 157. 

2 Equity, 124. 

3 Cf. Maitland, Equity, 124-129; Lewin, Trusts (nth ed.) 1079-1081. 
* Cf. In re Hart, (191 2) 3 K. B. 6, 18. 

5 Cf. Farquharson Bros. v. King, (1902) A. C. 325, 336-337. 



THE DEVELOPMENT OF EQUITABLE INTERESTS I3I 

claim against the person beneficially entitled to it. In other 
words, equitable estates are at present not regarded as of the 
special sort as to which the encouragement of free exchange is 
of prime social importance.^ 

§ 3. The Doctrine of the Superiority of the 
Legal Title 

But on the other hand, if the bona fide purchaser does in 
fact acquire the legal title for value and without notice, he is 
then protected against cestui. This superior virtue of the 
legal title, then, requires explanation.- Why should the 
acquisition of the legal title give the bona fide purchaser his 
advantage over cestui ? The reason is the same which in 
courts of common law gives the bona fide purchaser from an 
agent clothed with authority to dispose of his principal's 
property a title to the property he has bought. The posses- 
sion of legal title by the trustee, like the possession of indicia 
of title by a factor and of adequate power of attorney under 
appointment by an agent, clothes him with the power to 
confer upon a bona fide purchaser better rights than he had 

^ It may be remarked parenthetically that if the public policy of promoting 
security of acquisition of commodities is strong enough to override in the interest of 
a bona fide purchaser in certain cases even a legal title with its connoted rights in 
rem, then clearly the equitable interest, which cannot be defeated by a bona fide 
purchaser unless he have also added to his bona fides possession of the legal title, 
must be a very strongly entrenched interest, and the rights protecting it property 
rights of perdurable strength — rights genuinely deserving the name of rights in rem. 

"^ It is this fact which impressed Professor Maitland, and which made him an 
ardent advocate of the obligation theor>' of equitable rights. His arguments on the 
debated question are really directed to showing that the possessor of a legal title 
acquired in good faith will outrank the holder of the equitable title. " This shows," 
he repeats more than once, " that the rights concerned are rights of different 
orders." {Equity, 130-131.) But as we have already seen, there are different 
orders of rights in rem, in the sense that as to some classes of res a bona tide pur- 
chaser has superior rights to the legal owner; in others he has not. Professor Mait- 
land's argument really goes to show that we have here a possibly intermediate class 
of rights in rem between these two classes, good not merely against all the world 
except a bona fide purchaser, but also against a bona fide purchaser unless he has 
also acquired the legal title to the trust property. 



132 TEE ENFORCEMENT OF DECREES IN EQUITY 

himself. The trustee's legal title represents no genuine 
estate of his in the property. It is merely the index of a 
power to confer ownership of the property in another. He 
is precisely in equity in the position of the owner of record 
under a recording act after he has transferred title out of 
himself. As Cozens-Hardy, M. R., put the matter in Capital 
and Counties' Bank v. Rhodes: ^ " The transfer by registered 
disposition takes effect by virtue of an overriding power and 
not by virtue of any estate in the registered proprietor." 

To carry out the purposes for which the trust was created, 
the trustee has been clothed with legal title to the trust prop- 
erty, and this carries with it the power to abuse the con- 
fidence reposed in him. The legal title of the trustee is a 
possible source of harm to innocent dealers with him, and it is 
to protect those who in good faith and for value acquire the 
legal title from him in the belief that they are acquiring the 
equitable estate also, that the law lays on the beneficiary of 
the trust in such a situation the risk of loss from betrayal by 
his representative. This is the measured price he pays 
for the advantages he reaps from the trust. 

It is desirable, then, to examine somewhat more closely the 
purpose of the trust as a legal institution, and the function 
of the trustee. Trusts are a legally recognized institution 
because they aft'ord an effective method of safeguarding the 
interests of persons who for some reason cannot efficiently 
protect them themselves. The trustee is selected because 
of his intellectual and moral competence to guard and foster 
these interests on behalf of their possessor. The function 
of the trustee is, both in origin ^ and in analysis,^ allied to 

» (1903) I Ch. 633, 655-656. 

2 Cf. Pollock & Maitland, History of English Law, II, 228-233. 

3 Cf. Salmond, Jurisprudence (3d ed.) 232: " If we have regard to the essence 
of the matter rather than to the form of it, a trustee is not an owner at all, but a 
mere agent, upon whom the law has conferred the power and imposed the duty of 
administering the property of another person. . . . The trustee is clothed with 



THE DEVELOPMENT OF EQUITABLE INTERESTS 133 

that of agent. He is under the duty of holding, or perhaps 
also of administering, the trust res for the benefit of his 
quasi-principal, cestui que trust. It is to enable him 
properly and efficiently to discharge these duties under the 
common-law system of judicature that he is invested with 
the legal title. The historical necessity for such investiture 
has nowhere been more clearly explained than by Professor 
Maitland.^ In substance it is this: The device of the con- 
veyance of his property by a landowner to feoffees to uses 
enabled him to avoid the oppressive incidents of feudal 
tenure — rehefs, wardships, and marriages. By law the land 
was owned by the feoffees; they had taken the place of the 
lord's former tenant, the feoffor, and the lord could not look 
behind them: — *' it was nothing to him," as Maitland says, 
" that they were allowing another person to enjoy land which 
by law was theirs." 

To the success of this scheme the vesting of the legal title 
in the feoffee was imperative. It succeeded just because in 
the courts of law the beneficial ownership in cestui que use 
was unrecognized. 

" If courts of law," to quote Maitland again, " had begun to say: 
* After all this land is the feoffor's land, the feoffees are a mere 
screen, or the feoffees are merely the feoffor's agents,' then the whole 
scheme would have broken down — wardship, marriages, forfeitures, 
escheats, would have followed as a matter of course. But the common 
law was not prepared to do this. It had no forms of procedure, no 
forms of thought, which would serve for these cases." ^ 

the rights of his beneficiarj-, and is so enabled to personate or represent him in 
dealings with the world at large." 

Mr. Underbill, in an acute analysis of the diiTercnce between a contract and a 
trust, pointed out that " a trust once finally created is in fact the equitable equivalent 
of a common-law gift, and leaves no right in the creator of it as such, to enforce it; " 
and finally, concludes that the trustee is an agent of the beneficiary without any 
duty to the settlor. " In truth," he says, " the latter is a donor, the beneficiaries 
collectively the donees, and the trustee a sort of stakeholder for them." Trusts, 3. 

1 Lectures on Equity, 26-29. Cf. Sugden, Powers, 4, and cf. also Jenks, Short 
History, 95-97. 

^ Loc. cit., 27-28. 



134 THE ENFORCEMENT OF DECREES IN EQUITY 

It was then historically of the very essence of the trust 
relationship that the trustee should have the legal title and 
the rights, powers, duties and liabilities which this involved. 
But practically it is also of the essence of this relationship 
that the trustee is bound to use these rights and powers and 
bear the burden of these duties and liabiHties for the benefit 
of another. And the holding of the legal title by the trustee 
was ultimately only a means to this end. The legal estate 
of the trustee even now is not, as Mr. Jenks ^ and Mr. 
Willoughby ^ seem sometimes to think, an absolutely use- 
less, superfluous, and indeed justice-defeating thing. It is 
true that in some of its applications it does injustice — con- 
spicuously for example in the doctrine of tabula in naufragio 
— but these appHcations of the doctrine are not logically 
necessary deductions from it.^ On the other hand, the uses 
of the legal estate are obvious in the cases where the trust is 
not executed by the Statute of Uses or according to its 
analogies. The estate enables the trustee to exercise effi- 
ciently the control over the property or the discretion in its 
management which are the precise reasons for which the 
settlor estabHshed the trust. And even when the legal 
estate is pretty thoroughly desiccated, there are still justi- 
fications for its continuance, neatly suggested in Dr. Wil- 
loughby's brilliant essay in the Law Quarterly Review : "* 

Our real property law is like a very untidy bundle done up wath a 
badly worn piece of string. Good or bad, the string is the only thing 
that holds it together at all. Before you cut the string you must have 
put a better cord in its place, or be prepared to repack the whole 
bimdle. Now the legal estate is the string — such as it is. 

Until a scientific system of property transfer has been con- 
structed, the obtaining of the legal estate is the surest method 

1 See The Legal Estate, 24 Law Quart. Rev. 147. 

2 The Distinctions and Anomalies Arising out of the Equitable Doctrine of the 
Legal Estate, passim, but especially vi, 15-16, 18-19, 71-72. 

3 Vide ante, p. 129. * 30 Law Quart. Rev. 127. 



THE DEVELOPMENT OF EQUITABLE INTERESTS I 35 

of reaching certainty of ownership which the law permits. 
And practically there is much to be said for the continuance 
of a device which, however open to attack from the scientific 
point of view, actually does enable a bona fide dealer to assure 
himself of the soundness of his title, and to cut through, even 
though he cannot disentangle, the complications of con- 
flicting equities.' 

The common law has always exhibited some fondness for 
these solvent formulas. As Mr. Willoughby has pointed 
out in his essay on The Legal Estate,- " seisin until quite 
modern times involved a power to defeat even legal title, 
just as legal title now involves a power to defeat equitable 
interests. The tortious feoffment by the party seised of the 
property is curiously analogous to the wrongful conveyance 
by a trustee to a purchaser for value." It seems probable 
that the similarly mechanical method of determining the 
conflict of interests between different claimants to property 
by ascertaining who had in good faith acquired completely 
the legal title from its holder, however wrongful the convey- 
ance on the holder's part, will in time disappear. Originally 
the distinction between the legal and the equitable title was 
essential to the success of the trust device. The superiority 
admitted, even in courts of equity, to the legal title has a 
historical explanation in the division of jurisdiction between 
the courts of common law and of equity, with the respect the 
latter, more or less perforce, paid to the former.^ It has a 
present practical explanation in its serviceability as a definite 
means of arriving at certainty as to ownership. But the 
possibility of injustice which lurks in the mechanical char- 
acter of the doctrine forebodes its ultimate disappearance. 

1 For illustration see Shropshire, &c. Co. v. The Queen, (1875) L. R. 7 H. L. 496, 
511. Cf. J. E. Hogg, The Legal Estate, 22 Juridical Rev. 55. 

^ The Legal Estate, etc., 16, 17; cf. Holdsworth, History of English Law, III, 82, 
281; Jenks, Short History, 107, 109. 

3 See J. R. V. M. P., Y. B. 37 H. VI, f. 13, pi. 3, and Kerly, History of Equity, 
Chap. 7. 



136 THE ENFORCEMENT OF DECREES IN EQUITY 

The holding of the legal title by the trustee of course enabled 
him to act in such a way as to injure rather than benefit the 
interests of cestui que trust with regard to the trust res. A 
part of the price paid for escaping the oppression of the 
common-law incidents of ownership was this possibility of an 
abuse of trust by the trustee. To adjust the situation so as 
to reap the largest possible advantages for cestui from the 
trusteeship of his property, at the least possible risk of abuse 
by the trustee of this trusteeship, has been the task of the 
courts of equity, who first gave legal recognition to the 
interest of cestui and who have through more than five 
centuries been fashioning rights and duties to protect that 
interest. 

It is, however, sometimes urged that an analysis of the 
rights of cestui will show that they are rights purely in 
personam. One must admit that cestui has rights against 
his trustee which are in personam — rights which arise out of 
the relation between them, just as similar rights in personam 
arise out of the relation between principal and agent. But 
this is an mcomplete analysis of cestui's rights. To-day he 
has also proprietary rights against people generally. 

In his great collection of cases and authorities on Trusts, 
Dean Ames arranges his cases on the nature of cestui's 
interest to show first that cestui's claim is purely equitable 
except where an account would lie at common law.^ The 
implied argument seems to be that since his claim lies only 
in equity it must be one in personam.^ With great respect 
it is submitted that this argument is an illustration of the 
tendency to an identification of substantive and remedial 
rights to which Mr. Justice Holmes refers in his essay on 
Early EngHsh Equity.^ The form of the remedy has, of 

1 Cases on Trusts (2d ed.) 235 d scq. 

2 Cf. Langdell in i Harv. Law. Rev. at 59-60, and Ames, Lectures on Legal His- 
tory, 233-234. 

3 Select Essays in Anglo-American Legal History, II, 716. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 1 37 

course, as Mr. Justice Holmes points out, reacted powerfully 
on the conception of the right ; but the property right is not 
identical with the remedial right to a subpoena by which it is 
sanctioned — the secondary right in personam which arises 
against the person who violates the primary right in rem. 
The maxim, " Equity acts on the person," is merely a state- 
ment as to its method of enforcing its decrees, a method 
resorted to because of its inability to affect titles directly by 
its decrees, which do not operate directly upon the property 
but must be made effective only through coercion of a recal- 
citrant defendant. This statement as to method does not 
settle at all the question of whether it will grant this remedial 
right for breaches of rights in personam only or also for 
breaches of rights in rem. The rights of cestui should not 
be determined by the procedure which has been adopted by 
the court of equity. Statutes such as this essay discusses 
now confer in a large number of jurisdictions the power on 
courts of equity to proceed in rem, but the right that is 
enforced now by proceeding in rem is clearly the same right 
that was before enforceable only in personam. A change in 
procedure cannot affect the nature of the substantive rights 
enforced. 

Indeed, if the point deserves further pressing, it may be 
pointed out that proceedings in personam — that is, proceed- 
ings designed to create a personal duty against a defendant 
— are the normal method even in the courts of common law 
for enforcing rights admittedly in rem — general in their 
nature, — for example, an action of trover against the con- 
verter of the plaintiff's ring.^ And, on the other hand, rights 
in their nature purely personal may be vindicated through 
proceedings essentially in rem, for example the probating of a 
will or the selling of property on execution by a sheriff." 

* See Tyler v. The Judges, (1900) 175 Mass. 71. 

2 See Woodruff v. Taylor, (1847) 20 Vt. 65, 73, 74-75- 



138 TEE ENFORCEMENT OF DECREES IN EQUITY 

Nor is it conclusive that cestui's rights are purely rights in 
personam against the trustee because they may be enforced 
regardless of the situs of the trust res.^ Equity may and 
does act in personam by imposing a duty in the jurisdiction 
even when the trust res lies outside the territorial jurisdic- 
tion of the court. But, as has been indicated, the complete 
analysis of the trust relation shows that cestui has a right 
not only in rem as to people generally with regard to the 
trust res but also a special right in personam against the 
trustee, correlative to the latter's special duties as trustee 
to administer the property for the benefit of cestui.^ The 
statutes which give courts of equity power to give a real 
effect to their decrees simply recognize that the procedure 
which implements fully this right against the trustee per- 
sonally is an incomplete expression of the substantive rights 
which the law should acknowledge procedurally, to enable 
equity adequately to enforce the rights it recognizes when it 
acts as if cestui were, in the oft-repeated phrase of its judges, 
" the equitable owner." 

It is true that cestui cannot proceed directly against a 
stranger either at law or in equity. Of course at law the 
trustee is the owner and must be the one to exercise the 
owner's rights; even in equity the purpose of the trust 
relation is that the duties of administering the trust res for 
the benefit of cestui — which include the maintenance of 
suits against third parties — shall be discharged by the trus- 
tee. It is of the essence of the trust relation that cestui is to 
be represented by the trustee.^ But the courts recognize that 
the trustee is after all no more than a representative, that 
the right which is being enforced is cestui's. This is very 
clearly demonstrated in the well-known case of Wetmore v. 

1 Cf. Ames, Trusts, 244 and note. 

2 Cf. Pound, Review of Willoughby, The Legal Estate, 26 Harv. Law Rev. 464- 
» Carey v. Brown, (1875) 92 U. S. 171. 



TEE DEVELOPMENT OF EQUITABLE INTERESTS 1 39 

Porter.^ In that case VVetmore, the trustee of certain bonds, 
wrongfully pledged the bonds to a bank in New York as 
collateral security for the notes of the firm of Wetmore & 
Porter. Porter knew that the bonds were trust funds. 
Porter ordered the bonds to be sold and the proceeds applied 
to the payment of a firm note. Wetmore brought suit 
against Porter to recover possession of the funds, and the 
trial court gave judgment in favor of Porter on a demurrer to 
plaintiff's complaint. The judgment was based on the 
doctrine " Ex turpe causa non oritur actio^ But the Court 
of Appeals of New York reversed this judgment on the 
ground that the action was " sought to be maintained by the 
plaintiff solely in his representative capacity." Obviously, 
if the claim which Wetmore had sought to enforce had been 
his own, he could not have recovered from his fellow wrong- 
doer by showing his own breach of trust ; ^ but since it was 
really cestui's right of equitable ownership which was being 
protected by the penitent trustee the suit was permitted. 
The doctrine of this case is English as well as American law.^ 
It may also be pointed out that if Mr. Ames is correct in 
his theory that the doctrines of undisclosed principal can be 
rationalized only by recognizing that the agent of an undis- 
closed principal is really a trustee for the undisclosed prin- 
cipal as cestui ^ then here the law courts have impliedly lent 
their support to the doctrine that cestui's rights are real, by 
permitting the undisclosed principal to sue and be sued on 
the contracts made by his agent-trustee.^ The importance 

1 (1883) 92 N. Y. 76. 

"^ Cf. Jones V. Yates, (1829) 9 B. & C. 532, per Tenterden, C. J.: " We are not 
aware of any instance in which a person has been allowed as plaintiff, in a court of 
law, to rescind his own act, on the ground that such an act was a fraud on some 
other person; for a party seeking to do that has the benefit of his own fraud." 

' Cf. Franco v. Franco, (1796) 3 Yes. Jr. 75. 

* See Lectures on Legal History, 453, reprinted from Yale Law Jour, for May, 
1909. 

^ See Gibson v. Winter, (1833) 2 L. J. (n. s.) K. B. 130. 



140 THE ENFORCEMENT OF DECREES IN EQUITY 

of this doctrine of the undisclosed principal's right of suit, 
so often thought to be anomalous/ in this connection is 
really considerable. If Mr. Salmond is right in considering 
the real legal situation in the trust relation to be that of a 
special form of agency for cestui as principal,^ then we see 
in these cases of undisclosed principal how the law courts 
deal with the rights of the beneficial owner where their nar- 
row legal categories admit of their recognizing the situation. 
They let the cestui-principal sue in his own name.^ In 
many cases they have let a depositor sue a sub-agent bank for 
money had and received when the depositor has deposited a 
note for collection.^ Even in the case of receivers the 
Crown was long ago allowed to sue in the Court of Exchequer 
a deputy appointed by a crown officer. The royal principal- 
ship overrode the barrier of the current doctrine of privity 
even in the exchequer courts.^ The case of Head v. Lord 
Teynham ^ illustrates the same doctrine of the primacy of 
cestui's rights. There six children were the beneficiaries of 
a trust of land limited to trustees for a long term to raise 
money for the children's portions. Two of the children had 
assigned their shares to a trustee for the benefit of two of the 
other children. The question was raised whether this 
second trustee should be a party to a suit to execute the 
trust. It was held that as the original trustees of the term 
and all the children were before the court, it was unnecessary 
to join the other trustee, and the court directed a sale of the 
term without his having been made a party. Here pretty 
clearly the decision can be justified only by recognizing as 
the court did that the rights involved are those of the child- 
ren, the ultimate beneficiaries. 

^ Mechem, Agency (2d ed.) §§ 1729-1731. ^ 

^ Jurisprudence (3d ed.) 232, quoted p. 132, n. 3 supra. 
^ Mechem, loc. cii., § 2059. 

* See cases collected in Ames, Trusts, 265. 

* Cf. The Queen v. Painter, (1590) 4 Leon. 32, pi. 89. * (1783) i Cox 57. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 14I 

Another place where the garment of trusteeship is worn 
thin is in the matter of discharging obligations held in trust. 
Of course at law the discharge must be by the legal owner, 
the trustee.^ But in equity a release by cestui que trust 
having the entire beneficial interest is effectual.- Equity, 
moreover, will set aside the release by the legal owner at the 
instance of the real owner, cestui; and indeed in some 
American jurisdictions even common-law courts have treated 
a trustee's release as a nullity when the obligor acts in bad 
faith.^ This is a noteworthy recognition of the actuahties of 
the situation. 

So also in the matter of defences open to a third party 
when sued in a cause of action relating to the trust. At 
common law of course the suit is the trustee's, and a defence 
good against the trustee will be a bar. 

The plaintiff, though he sues as trustee of another, must in a court 
of law be treated in all respects as the party upon the record. If 
there is a defence against him there is a defence against the cestui que 
trust who uses his name, and the plaintiff cannot be permitted to say 
for the benefit of another that his own act was not binding.^ 

This doctrine, confessedly purely formal, is the basis of the 
common-law permission to the third party defendant to set 
up against cestui, the real party in interest, a defence good 
only against the trustee, the party to the record. But as we 
have seen, the basic doctrine is repudiated in equity.^ So 
also in the case of set-off by a third party. While a third 
party cannot at law plead by way of set-off a debt due him 
from cestui que trust, such set-off is allowed if the case can be 

1 Parker v. Tenant, (1561) Jenkins, Cent. Cases, 22, pi. 25. 

2 Pratt V. Dow, (1868) 56 Me. 81. 

' Roden v. Murphy, (1846) 10 Ala. 804; O'Reilly v. Miller, (1873) 52 Mo. 210. 
< Denraan, C. J., in Gibson v. Winter, (1833) 2 L. J. (n. s.) K. B. 130. 
^ Vide supra, p. 139. 



142 THE ENFORCEMENT OF DECREES IN EQUITY 

got into equity/ and also as an equitable bar in common-law 
actions.^ 

A peculiarly untoward result of considering cestui's rights 
as purely personal, operating only on the conscience of the 
trustee, is the doctrine that if the Statute of Limitations has 
run against a trustee in favor of a third party with respect to 
the trust res, cestui has recourse only against the trustee. 
So, if a trustee of land should negligently permit a stranger 
to hold the land adversely for the statutory period, so that he 
acquired a legal title good against the trustee, cestui would 
also be barred. Thus Lord Redesdale in Hovenden v. 
Annesley ^ said : 

A cestui que trust is always barred by length of time operating 
against the trustee. If the trustee does not enter and the cestm que 
trust does not compel him to enter, as to the person claiming para- 
moimt the cestui is barred. 

Of course if cestui que trust is sui juris when the statute 
begins to run, the hardship of this rule is at least mitigated by 
cestui's power to compel the trustee to act. But the rule 
has been pushed to its logical conclusion, and cestui que 
trust has been barred even when the adverse occupation 
began while he was an infant.^ On the other hand, if the 
interest of cestui is a real and independent interest the statute 
should not run against it until the expiration of the addi- 
tional time allowed for disability. A persistent current of 
decisions contrary to what must still be admitted to be the 

1 Cf. Clark v. Cort, (1840) Cr. & Ph. 154. 

2 Cochrane v. Greene, (i860) 9 C. B. (n. s.) 448, and other cases cited by Ames, 
Trusts, 270, note. 

3 (1806) 2 Sch. & Lef. 607, 629; cf. Pentland v. Stokes, (181 2) 2 B. & B. 68, 75. 
* Cf. In re Scott, (1858) 8 Ir. Ch. 316, 323. 

Wych V. East India Co., (1734) 3 P. W. 309, usually cited in America for this 
doctrine (cf. Williams v. Otey, (1847) 8 Humph. 563) is inconclusive; for the statute 
of limitations had run against the trust res itself, the debt owed by the company; 
so that whether cestui's interest in the chose in action was real or personal the case 
was correctly decided. Cf. Bacon v. Gray, (1851) i Cush. (Miss.) 140, 144. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 1 43 

weight of authority, at least in America, registers the grow- 
ing appreciation by the courts of the real character of cestui's 
rights. As early as 1699 equity relieved cestui whose 
trustee had during cestui's infancy allowed a third party to 
enter on the trust estate and levy a fine and non-claim. The 
report runs: " And although the fine and non-claim was a 
good bar at law, the legal estate being in the trustees, who 
were of full age and ought to have entered, yet the plaintiff 
ought not to suffer for their laches, being an infant." ^ And 
in a case where trustees had failed to sue on behalf of their 
cestui, Sir Joseph Jekyll, M. R., said: " The forbearance of 
the trustees in not doing what it was their office to have done 
shall in no sort prejudice the cestuy que trusts, since at that 
rate it would be in the power of trustees either by doing 
or delaying to do their duty to affect the rights of other 
persons." ^ This doctrine of Jekyll's is vigorously upheld in 
a Mississippi case in 185 1 by Chief Justice Starkey,^ and the 
Mississippi court has continued to follow the better view,'^ 
with an apparently growing support in other American juris- 
dictions.^ 

In 1868 an Irish court seemed to regard the question as an 
open one,^ and since Re Nisbet and Potts' Contract ^ the 
position that the statute as affecting the trustee's estate as 
against the disseisor would not bar cestui's rights where he 
has been under a disability within the statutory period, 

' Allen V. Sayer, (1699) 2 Vera. 268, 269. Cf. however a note of the opinion of 
Parker, L. C, in the Earl v. the Countess of Huntington, (1719) 3 P. W. 309, n. 

2 Lechmere v. Earl of Carlisle, (1733) 3 P. W. 211, 215. But cf. Lord Manners 
in Pentland v. Stokes, (181 2) 2 B. & B. 68, 75. 

' Bacon v. Gray, (1851) i Cush. (Miss.) 140. 

* Cf. Parmele v. McGinty, (1876) 52 Miss. 475, 481. But cf. Miss. Code of 
1880, 2673. 

* Cf. Hovey v. Bradbury, (1896) 112 Cal. 620, 624; Mills v. Bleckley, (1898) 51 
S. C. 506; Elliott V. Lander Machine Co., (191 1) 236 Mo. 546. 

« Quinton v. Frith, (1868) 2 Ir. R. Eq. 396, 416. 
' (1906) I Ch. 386 (C. A.); vide supra, p. no. 



144 THE ENFORCEMENT OF DECREES IN EQUITY 

seems to be a logical inference from the state of the English 
decisions.^ 

The most important field for testing the real nature of 
cestui's rights is that of the transfer of cestui's interests to 
others. But little, however, need be said in addition to 
what has just been said in connection with cestui's control 
over his estate and to the earlier discussion of transfers of 
interests by the trustee.^ That cestui could transfer his 
equitable estate freely was a doctrine dating back to the 
days of uses.^ But there was a doctrine, supported by the 
great name of Sugden, to the effect that a court of equity 
would give no assistance against a purchaser for value with- 
out notice * and it was argued from this that if A transferred 
his equitable estate to X and later wrongfully purported to 
transfer it to Y, who was a bona fide purchaser for value, 
Y would prevail against X. But in the leading case of 
Phillips V. Phillips ^ it was held that the rule of priority 
would prevail here as in the case of transfers by trustees. 

In that case the equitable owner of a fee simple in certain 
lands (legal title being in certain encumbrancers) granted an 
annuity or rent charge out of his equitable estate to plaintiff. 
Later he married and made a settlement of his equitable 
interest, under which settlement defendant claimed, having 
been a purchaser for valuable consideration. The plaintiff 
sought payment of the annuity. Defendants claimed as 
bona fide purchasers under good deed. Lord Westbury 
considered carefully the question of whether the plaintiff's 
claim could prevail against a bona fide purchaser for valuable 
consideration without notice, and held it could not; that the 
grantor having diminished his interest by the annuity, he 
had left only the estate subject to the annuity and no more. 

1 Cf. also Scott V. Scott, (1854) 4 H. L. C. 1065, 1082. 

2 p. 33 et seq. * Ames, Lectures, 253. 

2 See p. loi, n. i. ^ (1861) 4 De G. F. & J., 208. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 1 45 

Clearly, Lord Westbury thought of cestui's interest as a 
property interest which gave its equitable owner rights in rem. 
If he transferred it he transferred a real interest, if he im- 
posed a burden on it, it was a burden on property, not a mere 
duty enforceable against the trustee. The interest of the 
equitable owner of the lands was subjected by him to a 
subordinate equity, the annuity, and the property he trans- 
ferred to the bona fide purchaser in the settlement was sub- 
ject to that equity. 

This was not, it is true, a case of a sub-trust imposed on the 
equitable owner's interest in the property, but an equitable 
charge — comparable in all relevant particulars with a trust. 
Mr. Ames supported the principal case on the ground that 
cestui may transfer a whole or an aliquot part of his interest 
by an assignment, and if he does so then a second assign- 
ment would grant only what cestui had left after his first 
transfer.^ This looks very like a theory that cestui's equi- 
table interest is a proprietary one. But Mr. Ames dis- 
tinguished the case where cestui, instead of making a transfer 
to X, declared himself a trustee of his equitable interest for 
X, and then subsequently transferred to Y, a bona fide pur- 
chaser for value. In such a case he thought that Y would 
prevail. He admits that the cases do not go on this theory, 
and that there are numerous cases inconsistent with it.- But 
on the authorities it is clear that the equitable owner by 
declaring himself a sub-trustee and thereby passing the bene- 
ficial equitable interest out of himself to his sub-cestui 
could not, since he is not himself possessed of legal title, 
give to a subsequent bona fide purchaser of his interest any 
right against cestui of the sub-trust. 

Cave V. Cave ^ was in effect such a case. There T, a 
trustee for X, mortgaged the trust property to Y, and so as 

^ Lectures on Legal History, 263. ^ (1880) 15 Ch. D. 639. 

* See loc. cil., 264-265. 



146 THE ENFORCEMENT OF DECREES IN EQUITY 

mortgagor became the holder of the equity of redemption in 
trust for X. He then mortgaged the property to Z, who was 
ignorant of the earHer transactions and entitled to claim as a 
bona fide purchaser. Here, on Mr. Ames's theory, Z, who 
was a bona fide purchaser from T, who held his equity of 
redemption in trust for X, should take precedence over Y, the 
prior second mortgagee. But the court held that Y and not 
X was entitled.^ Moreover, the court decided the case on 
the authority and reasoning of PhilHps v. Phillips, and spoke 
of equitable charges as similar to other equitable estates for 
the purpose of aligning the rights of bona fide purchasers. 

Nor does the famous case of Dearie v. Hall ^ conflict with 
the general doctrine of the real nature of cestui's right. This 
case, established for England a rule also widely followed in 
other jurisdictions,^ that " where a cestui of purely personal 
estate makes successive assignments of his equitable interest 
a later assignee gains priority over an earlier assignee if he 
had no notice of the earlier assignment when his own was 
created, by giving prior notice to the trustees in whom the 
property was vested." ^ The general American doctrine is 
to the effect that if C, cestui, assigns his right to X and then 
purports to make a second assignment to Y, a bona fide pur- 
chaser for value without notice, X will prevail.^ This is 
obviously the pure property doctrine; C has divested him- 
self of his equitable estate by the first assignment, and so Y 
takes nothing. 

But the rule in Dearie v. Hall is in reality a judicial provi- 
sion similar to those legislatively provided in recording acts, 
— indirect but none the less cogent testimony in favor of 

1 It is interesting to note that Professor Maitland approved of Cave v. Cave; see 
Equity, 131. 

2 (1828) 3 Russell I, 28. 

3 See authorities collected in Ames, Cases on Trusts, 326-328, note. 

* Statement of rule quoted from Ashburner, Equity, 182. 

* Note 3 above. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 1 47 

protecting a bona fide purchaser in that special class of equi- 
table interests which are subjects of commerce. It is this 
distinction between a commercial interest, transferability of 
which is of prime importance, and what is less definitely a 
commodity of daily transfer, which has led the courts to 
refuse to extend the rule of Dearie v. Hall to real property.^ 
But as the rights of a vendee of real estate under an unre- 
corded deed are none the less rights in rem because suscep- 
tible of defeat by a prior registration of a later deed by a 
bona fide purchaser from the vendor, so the rights of a first 
purchaser of an equitable interest in personal property are 
none the less real because they may be defeated by prior 
notice given to the trustees of the property by a later bona 
fide purchaser for value without notice. That this is the 
view held by Sir Thomas Plumer, M. R., the author of the 
rule in Dearie v. Hall, is clear from his language.- 

The cases, then, which involve transfers by cestui of his 
equitable estate, like those where the legal estate is trans- 
ferred by the trustee by virtue of his power, show that 
cestui's interest is regarded as a genuine property interest. 
It is submitted that the following recent statement by an 
American judge phrases with accuracy the existing legal 
situation, as to the rights and powers of both cestui and 
trustee: 

1 Lee i». Hewlett, (1856) 2 Kay & J. 531. 

- Dearie v. Hall, (1828) 3 Russ. i, 20: " If by the first contract all the thing is 
given there remains nothing to be the subject of the second contract, and priority 
must decide. . . . They say that they were not bound to give notice to the trus- 
tees; for that notice does not form part of the necessary conveyance of an equitable 
interest. I admit that if you mean to rely on contract with the individual you do 
not need to give notice; from the moment of the contract, he with whom you are 
dealing is personally bound. But if you mean to go further, and to make your 
right attach upon the thing which is the subject of the contract, it is necessary to give 
notice; and unless notice is given, you do not do that which is essential in all cases 
of transfer of personal property. Notice then is necessary to perfect the title — 
to give a complete right in rem and not merely a right as against him who conveys 
his interest." See also 12-14 and 24. 



148 THE ENFORCEMENT OF DECREES IN EQUITY 

Under our system the cestui que trust is the real owner of the 
property, and the trustee merely the depositary of the legal title. His 
is not a property right but a legal duty founded upon a personal con- 
fidence; his estate is not that which can be enjoyed but a power that 
may be exercised.^ 



§ 4. The Present Trend of the Law. 

It is but natural that as the burdensome incidents from 
which the wall of legal title in the feoffees to uses and their 
successors, the trustees, protected the estate of cestui que 
trust, grew fewer with the abolition of reliefs, wardship, and 
marriage, or less likely to arise, as in the case of forfeiture 
for treason and escheat for felony; and as the disabilities as 
to disposition of property by gift and will disappeared, the 
importance of the legal title and the powers and privileges it 
conferred became less overmastering, and the superior signi- 
ficance and real nature of cestui's interest rose into view. 
Courts of law, it is true, continued to regard only the form, 
but equity, looking to the substance of the interests involved, 
more and more definitely directed its energies not to the 
restraining of the possibility of abuse of the powers which 
the trustee possessed by virtue of holding legal title but also 
to the protection of the interests of cestui, desire for whose 
benefit was the original cause of the creation of the relation- 
ship. Had the courts of common law been less " entangled in 
the nets of form " — to use the damning phrase of Mansfield^ 
— the legal estate of the trustee with its possibilities of 
injustice might have been reduced to a mere power in law 
as well as in equity, and the trustee treated there, as on the 
other side of the court, as the agent which in reality he is. 
The complexities of the equitable doctrine of bona fide 

^ Hodges, J., in Arnold v. South Pine Lumber Co., (1909) 123 S. W. (Tex. C. C. 
App.) 1 162, 1 168. 

2 Cf. Doe V. Pegge, (1785) i Term R. 758, n. 



THE DEVELOPMENT OF EQUITABLE LNTERESTS 1 49 

purchaser of the legal title are after all traceable to the 
separation of jurisdictions.^ 

If a single court administered justice, and were armed with 
a procedure adequate to complete enforcement of all the 
rights our system of jurisprudence recognizes, then the 
equitable rights of property would be treated as legal rights 
independent of the form in which they originated. The law 
of property would doubtless have to be further recast, but 
with the development of a scientific system of transfer of 
property interests ^ whatever elements of usefulness still 
reside in the nominal legal estate of the trustee, the mort- 
gagor, and similar holders of power to dispose of title would 
disappear, and these powers be treated with the directness 
and absence of fiction with which courts of law deal with 
agents' powers.^ The development of a simple, definite, and 
yet flexible conception of the doctrine of the bona fide pur- 
chaser would then be possible.'* 

^ See Ind, Coope & Co. v. Emmerson, (1887) 12 A.C. 300, 306 and cf. 308. Cf. 
also Bacon, Reading on Lhe Statute of Uses, 9, quoted supra, p. 98; and Hardwicke, 
L. C, in Worthy v. Birkhead, (1754) 2 Yes. Sr. 571, 573: " It could not happen," 
(an application of the tabula in naujragio doctrine) " in any other countr>' but this: 
because the jurisdiction of law and equity is administered here in different courts 
and creates a different kind of rights in estates; and therefore as courts of equity 
break in upon the common law, where necessity and conscience require it, still they 
allow superior force and strength to a legal title to estates; and therefore where 
there is a legal title and equity on one side, this court never thought fit, that by 
reason of a prior equity against a man, who had a legal title, that man should be 
hurt; and this by reason of that force this court necessarily and rightly allows to 
the common law and to legal titles. But if this had happened in any other country 
it could never have made a question; for if the law and equity are administered by 
the same jurisdiction the rule, qui prior est tempore potior est jure, must hold." 
Cf. also Mansfield in Burgess v. Wheate, (1759) i Eden 177, 223. 

^2 Cf. the earnest efforts in this direction now being made in England, and the 
current discussions of them, e. g., by Mr. Underbill, in 30 Law Quart. Rev. 35-45; 27 
Law Quart. Rev. 173-179. 

^ Thus for example if the trustee were recognized as essentially an agent, his 
principal, cestui, would in such a case as Wetmore v. Porter (discussed supra, p. 139) 
have a reasonable time after he discovered his agent's fraud to repudiate it, and 
the statutory period would not be shortened by the period between the trustee's 
wrong-doing and his repentance. 

* Cf. Pound, The Decadence of Equity, 5 Col. Law Rev. 20, at 29: "The fusion 



I50 TEE ENFORCEMENT OF DECREES IN EQUITY 

This development from a dual to a single system of rights, 
enforced by any appropriate proceeding and by all the 
powers at the disposal of the judicial branch of the govern- 
ment, is illustrated in the history of the Roman law.^ Equi- 
table ownership first arose to satisfy the demands of justice 
denied by the rigidity of the rules of the jus civile J^ The 
Publician Edict indirectly recognized the validity of equi- 
table ownership, and its subsequent development justified 
Justinian m taking the final step of making all equitable 
rights into legal rights.^ 

As Judge Dillon said years ago, in his lectures on the Laws 
and Jurisprudence of England and America: * 

The separation of what we call equity from law was only acci- 
dental, or at any rate was unnecessary, and the development of an 
independent system of equitable rights and remedies is anomalous and 
rests upon no principle. The continued existence of these two sets of 
rights and remedies is not only unnecessary but its inevitable effect 
is to produce confusion and conflict. The existing diversity of rights 
and remedies must disappear, and be replaced by a uniform system of 
rights as well as remedies. 

of law and equity may have helped in this, as it has certainly helped the law by ob- 
viating the circuitous and artificial methods forced upon equity by its history. . . . 
Just as equitable remedies engrafted upon common-law actions have borne equitable 
fruit, legal actions made available to equitable claims have borne the legal fruit of 
direct and straightforward proceedings. Such is the influence of procedure on the 
substance of the law that this brushing away of the circuitous methods of equity is a 
great gain to the system." 

1 See Sohm, Institutes (Ledlie's trans. 3d ed.) 310-31 1. 

2 Cf. Gaius II, §§ 40-41 and Poste's commentary thereon. 

' Code VII, 25: " Driving out by this decision a mockery of ancient subtlety, 
we suffer no difference to exist between owners, among whom the naked legal 
title {ex jure Quiritium) or only the equitable {in bonis) is found, because we do not 
desire any such distinction nor doctrine of title ex jure Quiritium, which is a mere 
vain puzzle, and is never seen and never appears in practice but is a vain and super- 
fluous phrase ..." 

Cf. also, outlining the similar development of the civil law doctrine of liens, 
Salkowski, Institutionen (Whitfield's trans.) § 115. 

^ Laws and Jurisprudence of England and America, 386, quoted and discussed by 
Professor Pound, The Decadence of Equity, 5 Col. Law Rev. 20, 23. 



THE DEVELOPMENT OF EQUITABLE INTERESTS 151 

The experience of England under the Common Law Pro- 
cedure Acts of 1852, 1854, and i860, the Chancery Amend- 
ment Acts of 1852 and 1858, and the Judicature Act of 1873 
with its numerous amending acts, encourages the behef that 
we may look forward to a time when the anomalies and an- 
achronisms inherited from the dual system of courts long 
characteristic of the Anglo-American administration of 
justice wull disappear; when all rights will be legal rights, 
and all alike subject to the same limitations which the judi- 
cial doctrine of bona hde purchaser and the statutory pro- 
visions of recording acts now almost universal in civilized 
countries show to be necessary in the interests of commercial 
intercourse and of business dealings generally.^ 

This discussion can make no pretensions to completeness. 
The subject is one of vast proportions, and the possible 
methods of approach are numerous. The writer's apology 
for going over ground, some of it often traversed before, is 
that those who have most carefully traced the historical 
development of the trust idea- have been on the whole 
unsympathetic with his point of view, and seem to him un- 
duly prejudiced by the juristic tradition of Coke, Gilbert, 
and Sugden against what appears to him to be a clearly 

1 Professor Maitland in 1906 was disposed to underestimate the effect of the 
union of the courts of chancery and common law into a single court of universal 
jurisdiction. But the elements he overlooked in his discussion {Equity, Lectures I, 
XI, and XII) have been pointed out by Professor Hohfeld: The Relations of Equity 
and Law, 11 Mich. L. R. 537. Cf. also. Law and Equity — the Test of their 
Fusion by J. E. Hogg — a discussion of Chapman v. Smethurst, (1909) i K. B. 
73. 937 — 22 Juridical Review, 244. For a good instance of the influence of the 
union, as early as 1891, see Clarke v. Ramuz, (1891) 2 Q. B. 456. This was an 
action brought in the Queen's Bench Division by the purchaser of land against the 
vendor for wrongfully allowing a third person to cart off from the land part of the 
soil. A judgment for damages for the plaintiff was upheld on the express ground 
that it was established in equity that the vendor in possession under a contract for 
the sale of land, but prior to the completion of the conveyance, is a trustee for the 
purchaser and as such under certain duties to him. 

2 Maitland, Equity, 117-121; Jenks, Modern Land Law, 141-142, and Short 
History of English Law, 218-220; Lewin, Law of Trusts, Introduction, i-io. 



152 THE ENFORCEMENT OF DECREES IN EQUITY 

traceable development in the decisions and the statutes of 
the rights of cestui from rights purely in personam to rights 
definitely in rem. It seems strange that great equity lawyers 
should be at times forgetful of the familiar but important 
dictum of Sir George Jessel in Re Hallett's Estate : ^ 

The rules of Courts of Equity are not, like the rules of the Common 
Law, supposed to have been established from time immemorial. It is 
perfectly well known that they have been established from time to 
time — altered, improved, and refined from time to time. In many 
cases we know the names of the Chancellors who invented them. No 
doubt they were invented for the purpose of securing the better 
administration of justice, but still they were invented. Take such 
things as these: the separate use of a married woman, the restraint 
on alienation, the modern rule against perpetuities, and the rules of 
equitable waste. We can name the Chancellors who first invented 
them, and state the date when they were first introduced into Equity 
jurisprudence; and therefore, in cases of this kind, the older precedents 
in Equity are of very little value. The doctrines are progressive, 
refined, and improved, and if we want to know what the rules of Equity 
are, we must look, of course, rather to the more modem than the 
more ancient cases. 

On the other hand, the tendency to over-simplification 
which, beginning in Langdell's theory that equity is only a 
system of remedies, and leading many analytical as well as 
historical jurists to see in the trust only the personal rights 
and duties growing out of the obligation which binds the 
trustee and cestui, overlooking the equally important real 
rights of cestui with respect to the trust property, — that 
tendency furnishes some justification for some analysis of the 
really complex rights and duties of trustee and cestui in the 
relation of the trust. 

As has already been indicated, a similar development is 
beheved to be traceable in the case of other equitable rights. 
Considerations of space have, however, prevented any 

1 (1879) 13 Ch. D. 696, 710. 



THE DEVELOPMENT OF EQUITABLE INTERESTS I 53 

adequate treatment of any other than the trust, the most 
clearly defined and the most important of them all. 

In the light of this discussion, the movement toward 
granting courts administering equitable relief the power to 
give a real effect to their decrees is seen to fall into place as 
one step in the really universal movement to adjust proce- 
dure to the character of the rights to which it seeks to give 
effect. The historical relation of procedure and substantive 
right ^ has been reversed as men have come to rationalize 
their law. But throughout, the relation of form and sub- 
stance has of necessity been of the utmost intimacy. The 
history, of the steps by which equity, long hampered by the 
jealousy of the courts of common law, and then by the rigidify- 
ing influence of her own precedents, has pushed forward, — 
first by the invention of one and then another new writ, and 
later by winning the aid of the modem law-making organ, 
the legislature, — to a position where her courts can transfer 
title to the person they recognize as entitled in right, is but 
the outer history to which an inner development of the rights 
she enforces by her decrees corresponds. It is because the 
rights she recognizes have become rights in rem that the 
remedies she is getting and seeking power to grant are 
remedies affecting titles. 

Some courts, notably that of California, have felt that the 
inherent powers of courts of equity jurisdiction, at least in a 
code state, were sufficient without special statutory authority 
to enable such courts to transfer title by virtue of their de- 
cree. But a statute makes the matter sure. The cautious 
words of Lord Blackburn in Jennings v. Jordan - may well be 
borne in mind : 

Some of the rules acted on in courts of equity in the kindred sub- 
ject of tacking securities on the same property are founded upon this, 
that a mortgage, after the time specified for redemption had expired, 

» Maine, Early Law and Custom, 389. ^ (1881) 6 App. Cas. 698, 714- 



154 THE ENFORCEMENT OF DECREES IN EQUITY 

was an absolute estate, which no doubt it was at law; and that the 
equity of redemption was only a personal equity to take away the legal 
estate from him in whom it was vested, which perhaps it originally was. 
It would seem that now, after equitable estates have been treated and 
dealt with for a very long time as, to all other intents, estates, any rule 
founded on the antiquated law ought to be no longer appUcable, and 
that cessante ratione, cessare debet et lex; but some rules apparently 
founded upon this antiquated law have been so uniformly and long 
acted upon that they must be treated as still binding . . . and now 
after the lapse of nearly a century and a half more, I think only the 
legislature can do away mth this rule. 

Such a statute as is argued for in this essay would set at 
rest the doubts of conservative judges as to their powers. 
Moreover, it would be a statute which would take a per- 
manent place in our legal system. This is assured not only 
because such statutes dealing with large portions of the 
subject have already in many jurisdictions stood the test of 
over a century in practice, but also because they are the 
legislative embodiment of the result of a genuine jural 
evolution. 



APPENDIX 



APPENDIX OF STATUTES 

Alabama: Alabama Civil Code, 1907. 

Section 321 1. When a decree is made for a conveyance, release, or 
acquittance, and the party against whom the decree is made does not 
execute the same by the time specified in the decree, such decree 
operates in all respects as fully as if the conveyance, release, or acquit- 
tance, was made; or the court may decree, in default of the execution 
of such conveyance, release, or acquittance, the same to be executed 
by the register or a commissioner in the name of the party; and the 
conveyance, release, or acquittance, when so executed, is as valid in all 
respects as if executed by the party; or the court may directly divest 
title out of one party and vest it in another. 

Section 3220. A final decree of partition is operative to vest title, 
though releases or conveyances are not executed. 

Alaska: Compiled Laws of Alaska, 1913. 

Section 1 2 1 3 . A judgment requiring a party to make a conveyance, 
transfer, release, acquittance, or other like act \sithin a period therein 
specified shall, if such party do not comply therewith, be deemed and 
taken to be equivalent thereto. The court or judge thereof may 
enforce an order or judgment in an action of an equitable nature, other 
than for the payment of money, by punishing the party refusing or 
neglecting to comply therewith, as for a contempt. 

Arizona: Revised Statutes of 1901. 

Section 1430. When the judgment is for the conveyance of real 
estate, or for the delivery of personal property, the decree may pass 
the title to such property without any act to be done on the part of the 
party against whom the judgment is rendered. 

Arkansas: Kirby's Digest, 1904. 

Section 4476. In all cases where the court may decree the convey- 
ance of real estate or the delivery of personal property, they may by 
decree pass title of such property without any act to be done on the 
part of the defendant where it shall be proper, and may issue a writ of 
possession if necessary to put the party in possession of such real or 
personal property, or may proceed by attachment or sequestration. 



158 APPENDIX OF STATUTES 

Section 4477. When an unconditional decree shall be made for a 
conveyance, release, or acquittance and the party required to execute 
the same shall not comply therewith, the decree shall be considered 
and taken to have the same operation and effect and be as available 
as if the conveyance, release, or acquittance had been executed con- 
formably to the decree. (R.S., c. 23, Sections 123 and 124). (1837, 
Chancery Act, Sections 123 and 124). 

Section 4478. [Such decree as to real estate shall be recorded.] 

California: Code of Civil Procedure (Deering's Ed., 1909, and 
Supplement of 191 1). 

Section 572. When it is admitted by the pleading, or shown upon 
examination of a party, that he has in his possession or under his con- 
trol any money or other thing capable of delivery, which, being the 
subject of litigation, is held by him as trustee for another party, or 
which belongs or is due to another party, the court may order the same, 
upon motion, to be deposited in court or delivered to such party, upon 
such conditions as may be just, subject to the further direction of the 
court. 

Section 573. If the money is deposited in court it must be paid to 
the clerk, who must deposit it with the coimty treasurer, by him to be 
held subject to the order of the court. For the safe-keeping of the 
money deposited with him the treasurer is liable on his official bond. 

Section 574. Whenever, in the exercise of its authority, a court 
has ordered the deposit or delivery of money, or other thing, and the 
order is disobeyed, the court, beside punishing the disobedience, may 
make an order requiring the sheriff to take the money, or thing, and 
deposit or deliver it in conformity with the direction of the court. 

Section 684. When the judgment is for money, or the possession of 
real or personal property, the same may be enforced by a writ of execu- 
tion; and if the judgment direct that the defendant be arrested, the 
execution may issue against the person of the judgment debtor, after 
the return of an execution against his property unsatisfied in whole or 
part; 

When the judgment requires the sale of property, the same may be 
enforced by a writ reciting such judgment, or the material parts 
thereof, and directing the proper officer to execute the judgment, by 
making the sale and applying the proceeds in conformity therewith; 

When the judgment requires the performance of any other act than 
as above designated, a certified copy of the judgment may be served 



APPENDIX OF STATUTES 1 59 

upon the party against whom the same is rendered, or upon the per- 
son or officer required thereby or by law to obey the same, and obe- 
dience thereto may be enforced by the court. 

Section 738. An action may be brought by any person against 
another who claims an estate or interest in real property, adverse to 
him, for the purjDOse of determining such adverse claim; provided, 
however, that whenever in an action to quiet title to, or to determine 
adverse claims to, real property, the validity of any gift, devise, or 
trust, under any will, or instrument purporting to be a will, whether 
admitted to probate or not, shall be involved, such will, or instrument 
purporting to be a will, is admissible in evidence; and all questions 
concerning the validity of any gift, de\ase, or trust therein contained, 
save such as under the constitution belong exclusively to the probate 
jurisdiction, shall be finally determined in such action; and provided, 
however, that nothing herein contained shall be construed to deprive 
a party of the right to a jury trial in any case where, by the law, such 
right is now given. 

Section 749. An action may be brought to determine the adverse 
claims to and clouds upon title to real property by a person who, by 
himself or by himself and his predecessors in interest, has been in the 
actual, exclusive and adverse possession of such property continuously 
for twenty years prior to the filing of the complaint, claiming to own 
the same in fee against the whole world and who has paid all taxes of 
every kind levied or assessed against the property during the period of 
five years continuously next preceding the filing of the complaint. 

Said action shall be commenced by the filing of a verified complaint 
averring the matters above enumerated. The said complaint may 
include as defendants in such action, in addition to such persons as 
appear of record to have, all other persons who are known to the 
plaintiff to have, some claim or cloud on the lands described in the 
complaint adverse to plaintiff's ownership, or other persons unknown 
claiming any right, interest or lien in such lands, or cloud upon the 
title of plaintiff thereto, and the plaintiff may describe such unknown 
defendants in the complaint as follows: " also all other persons 
unknown, claiming any right, title, estate, lien or interest in the real 
property described in the complaint adverse to plaintiff's ownership, 
or any cloud upon plaintiff's title thereto." 

Within ten days after the filing of the complaint, plaintiff shall file, 
or cause to be filed, in the office of the county recorder of the county 
where the property is situated, a notice of the pendency of the action. 



l6o APPENDIX OF STATUTES 

containing the matters required by section four hundred and nine of 
this code. 

Section 751. When the summons has been served as provided in 
the preceding section and the time for answering has expired, the 
court shall proceed to hear the case as in other cases and shall have 
jurisdiction to examine into and determine the legahty of plaintiff's 
title and of the title and claim of all the defendants and of all unknowTi 
persons and to that end must not enter any judgment by default, but 
must in all cases require evidence of plaintiff's title and possession and 
hear such evidence as may be offered respecting the claims and title of 
any of the defendants and must thereafter direct judgment to be en- 
tered in accordance with the evidence and the law. 

The court before proceeding to hear the case must require proof to 
be made that the summons has been served and posted as hereinbefore 
directed and that the required notice of pendency of action has been 
filed. The judgment after it has become final is conclusive against all 
the persons named in the summons and complaint who have been 
served and against all unknown persons as stated in the complaint and 
summons who have been served by pubUcation, but shall not be con- 
clusive against the State of California or the United States. 

Said judgment shall have the effect of a judgment in rem except as 
against the State of California and the United States; and provided 
further, that the said judgment shall not bind or be conclusive against 
any person claiming any estate, title, right, possession or lien to the 
property under the plaintiff or his predecessors in interest, which 
claim, lien, estate or right of possession has arisen or been created by 
the plaintiff or his predecessors in interest within twenty years prior to 
the filing of the complaint. 

The remedy provided in this and the two preceding sections shall be 
construed as cumulative and not exclusive of any other remedy, form 
or right of action or proceeding now allowed by law. 

Section 766. The court may confirm, change, modify, or set aside 
the report, and if necessary, appoint new referees. Upon the report 
being confirmed, judgment must be rendered that such partition be 
effectual forever, which judgment is binding and conclusive; 

I. On all persons named as parties to the action, and their legal 
representatives, who have at the time any interest in the property 
divided, or any part thereof, as owners in fee or as tenants for life or 
for years, or as entitled to the reversion, remainder, or the inheritance 
of such property, or any part thereof, after the determination of a 



APPENDIX OF STATUTES l6l 

particular estate therein, and who by any contingency may be entitled 
to a beneficial interest in the property, or who have an interest in any 
undivided share thereof, as tenants for years or for life; 

2. On all persons not in being at the time said judgment is entered, 
who have any interest in the property divided, or any part thereof, 
as entitled to the reversion, remainder or the inheritance of such prop- 
erty, or any part thereof, after the determination of a particular 
estate therein, and who by any contingency may be entitled to a 
beneficial interest in the property; provided, that in case sale has been 
made under the provisions of this chapter the judgment shall provide 
for keeping intact the share of the proceeds of said sale, to which said 
party or parties not in being at the time are or may be entitled until 
such time as such party or parties may take possession thereof; 

3. On all persons interested in the property, who may be unknown, 
to whom notice has been given of the action for partition by publica- 
tion; 

4. On all other persons claiming from such parties or persons, or 
either of them. 

And no judgment is invalidated by reason of the death of any party 
before final judgment or decree; but such judgment or decree is as 
conclusive against the heirs, legal representatives, or assigns of such 
decedent, as if it had been entered before his death. If during the 
pendency of the action, and before final judgment therein, any of the 
co-tenants has conveyed to another person his interest, or any part of 
his interest, such conveyance, whatever its form, shall be deemed to 
have passed to the grantee any lands which, after its execution, may 
have been set aside to the grantor in severalty, or such proportionate 
interest in such lands as the interest so conveyed bears to the whole 
interest of the grantor. 

Compare Section 187. When jurisdiction is by the constitution or 
this code, or by any other statute, conferred on a court or judicial 
officer, all the means necessary to carry it into effect are also given; 
and in the exercise of this jurisdiction, if the course of proceeding be 
not specifically pointed out by this code or the statute, any suitable 
process or mode of proceeding may be adopted which may appear 
most conformable to the spirit of this code. 

Colorado: Colorado Revised Statutes, 1908. 
Section 1408. In all actions pending in any court of record of this 
state or which may hereafter be brought in any such court, wherein any 



1 62 APPENDIX OF STATUTES 

defendant is not found within the jurisdiction of the court, and con- 
structive service alone is had, and which is brought for the enforce- 
ment of an express, implied, or resulting trust, or for the removal of 
cloud from title to real estate, or for specific performance, or for the 
establishment of a lost or destroyed deed, conveyance or instrument in 
writing, or for the establishment and proof of any conveyance, deed or 
instrument in writing not properly proved and acknowledged, or in 
any other proceeding in rem, or affecting only specific property, where, 
according to the usual practice in courts of chancery, the court, if the 
defendant had been personally served, might direct or decree any act 
to be done or performed by the defendant in favor of plaintifif , the court 
may appoint a trustee for such defendant to do and perform in the 
place and stead of and for such defendant, the acts required by the 
decree rendered in any such cause. Any act lawfully done by such 
trustee, under and in pursuance of any such decree shall be as binding 
and effectual for all purposes as if done and performed by the defend- 
ant in pursuance of such decree. 

Connecticut: General Statutes, Revision of 1902. 

Section 555. Courts of equitable jurisdiction may pass the title 
to real estate by decree without any act on the part of the defendant 
when, in their judgment, it shall be the proper mode to carry the decree 
into effect; and such decree, having been recorded in the records of 
lands in the town where such real estate is situated, shall, while in 
force, be as effectual to transfer the same as the deed of the defendant. 

Delaware: Laws of Delaware, 1893, Vol. II, p. 708. Chapter 90. 

Section i. When any person now or hereafter seized of lands, 
tenements or hereditaments, upon any trust shall be out of the juris- 
diction of or not amenable to the process of the Court of Chancery, or 
shall be insane, or it shall be uncertain where there were several 
trustees which of them was the survivor or it shall be uncertain 
whether the trustee last known to have been seized as aforesaid be 
living or dead, or if known to be dead it shall not be known who are his 
heirs at law, or if any trustee seized as aforesaid or the heirs at law of 
any such trustee shall neglect or refuse to convey such lands, tene- 
ments or hereditaments to the person entitled to receive such convey- 
ance, for twenty days next after a proper deed for making such 
conveyance shall have been tendered for his or their execution by the 
person so entitled or his agent or attorney, the Court of Chancery for 
the county wherein such lands, tenements, or hereditaments are situ- 



APPENDIX OF STATUTES 1 63 

ated shall have power to appoint a person to convey the same to such 
person and in such manner as the court shall direct; and any convey- 
ance so made shall be as effectual to all intents and purposes as if 
the same had been executed by the trustee or his heirs at law. 

Note. (Subsequent sections extend the rule to trustees for a term 
of years, trustees holding stock and provide for the removal of such 
disobedient or negligent trustee and an appointment of another trustee 
in whom the former's title shall vest.) 

Florida: General Statutes, 1906. 

Section 1902. Where a decree in chancery shall be made for a con- 
veyance, release, or acquittance of land or any interest therein and 
party against whom the said decree shall pass shall not comply there- 
with by the time appointed, then such decree shall be considered and 
taken in all courts of law and equity to have the same operation and 
effect and to be as available as if the conveyance and release or acquit- 
tance had been executed, conformably to such decree, and this 
notwithstanding any disability of such parties by infancy, lunacy, 
coverture or otherwise. 

Geokgia: Code of 191 1, Vol. I. 

Section 5356. The decree on a proceeding to partition shall pass 
the title without the execution of any conveyance by the parties. 

Section 5425. A decree for specific performance shall operate as a 
deed to convey land or other property without any conveyance being 
executed by the vendor. Such decree certified by the clerk shall be 
recorded in the registry of deeds in the county where the land lies 
and shall stand in the place of a deed. 

Illinois: Hurd's Revised Statutes, 19 13. Chapter 22. 

Section 46. Whenever a decree shall be made in any suit in equity, 
directing the execution of any deed or other writing, it shall be lawful 
for the court to appoint a commissioner, or direct the master in chan- 
cery to execute the same, in case the parties under no disability fail to 
execute the same, in a time to be named in the decree, or on behalf of 
minors or persons having conservators; and the execution thereof, by 
such commissioner or master in chancery, shall be valid in law to pass, 
release or extinguish the right, title and interest of the party in whose 
behalf it is executed, as if executed by the party in proper person, and 
he or she were under no disability; and such deed or other writing, if it 
relates to land, shall, within six months after its execution by such 



164 APPENDIX OF STATUTES 

commissioner or master, be recorded in the recorder's office of the 
county wherein the land may lie. 

Section 47. When there shall be no direction that a master in 
chancery or commissioner execute a decree, the same may be carried 
into effect by execution, or other final process, according to the nature 
of the case, directed to the sheriff or other officer of the proper county; 
which, when issued, shall be executed and returned by the sheriff or 
other officer to whom it may be directed, and shall have the same 
operation and force as similar writs issued upon a judgment at law. 
The sheriff, or other officer to whom the same is directed, shall be sub- 
ject to the like penalties and recoveries for misconduct or neglect in 
the execution or return thereof, as in cases at law; or the court may, 
if necessary, direct an attachment to be issued against the party dis- 
obeying such decree, and fine or imprison him, or both, in the discre- 
tion of the court, and may also direct a sequestration for disobedience 
of any decree. 

Indiana: Burns's Annotated Indiana Statutes, 1908, Vol. I. 

Section 1050. Real property may be conveyed by a commissioner 
appointed by the court: — 

First. Where, by the judgment in an action, a party is ordered to 
convey real property to another or any interest therein. 

Second. Or where real property, or any interest therein, has been 
sold, and the purchase-money paid. 

Section 105 1. The deed of the commissioner shall so refer to the 
judgment authorizing the conveyance, that the same may be readily 
found, but need not recite the record in the case generally. 

Section 1052. A conveyance made in pursuance of a judgment 
shall pass to the grantee the title of the parties ordered to convey the 
land. 

Section 1053. A conveyance made in pursuance of a sale ordered 
by the court shall pass to the grantee the title of all the parties to the 
action or proceeding. 

Section 1054. A conveyance by a commissioner shall not pass any 
right, until it has been examined and approved by the court; which 
approval shall be indorsed on the conveyance and recorded with it. 

Section 1055. It shall be sufficient for the conveyance to be signed 
by the commissioner only, without affixing the names of the parties 
whose title is conveyed; but the names of the parties shall be recited 
in the body of the conveyance. 



APPENDIX OF STATUTES 1 65 

Section 1056. The conveyance shall be recorded in the office in 
which, by law, it should have been recorded had it been made by 
parties whose title is conveyed by it. 

Section 1057. In case of a judgment to compel a party to execute 
a conveyance of real estate, the court may enforce the judgment by 
attachment or sequestration, or appoint a commissioner to make the 
conveyance. 

Section 1058. If the conveyance is made by a commissioner 
appointed by the court, the following form may be used, viz.: " A.B., 
commissioner by the order (or judgment) of (naming the court), in 
the case of (naming the party plaintiff), against (naming the party 
defendant), (or) on petition of (naming the description of the petitioner 
as A. B., administrator of C. D.), (or) guardian of (naming the wards), 
entered in (describe the kind of record, number of volume and page), 
conveys to E. F. (describe the premises), for (state the consideration)." 

Iowa: Code of 1897. 

Section 3805. Real property may be conveyed by a commissioner 
appointed by the court: 

1. Where, by judgment in an action, a party is ordered to convey 
such property to another; 

2. Where such property has been sold under a judgment or order 
of the court, and the purchase price has been paid. 

Section 3806. The deed of the commissioner shall refer to the judg- 
ment, orders and proceedings authorizing the conveyance. 

Section 3807. A conveyance made in pursuance of a judgment 
shall pass to the grantee the title of the parties ordered to convey the 
land. 

Section 3808. A conveyance made in pursuance of a sale ordered 
by the court shall pass to the grantee the title of all the parties to the 
action or proceeding. 

Section 3809. A conveyance by a commissioner shall not pass any 
right until it has been approved by the court, which approval shall be 
indorsed on the conveyance and recorded with it. 

Section 3810. The conveyance shall be signed by the commissioner 
only, without affixing the names of the parties whose title is conveyed, 
but the names of such parties shall be recited in the body of the con- 
veyance. 

Section 381 1. The conveyance shall be recorded in the office in 
which, by law, it should have been recorded had it been made by the 
parties whose title is conveyed by it. 



1 66 APPENDIX OF STATUTES 

Section 3812. Whenever by law it is permitted or required that 
judicial or other sales and conveyances of land may or shall be con- 
firmed and approved by a court, the judge of the court may, in vaca- 
tion, approve the same, and cause the proper entry or entries to be 
made. 

Kansas: General Statutes, 1909. 

Section 5993. When a judgment shall be rendered for a convey- 
ance, release or acquittance, in any court of this state, and the party 
against whom the judgment shall be rendered does not comply there- 
with by the time appointed, such judgment shall have the same opera- 
tion and efifect, and be as available, as if the conveyance, release or 
acquittance had been executed conformably to such judgment; or 
the court may order such conveyance, release or acquittance to be 
executed in the first instance by the sheriff; and such conveyance, 
release or acquittance so executed shall have the same effect as if 
executed by the party against whom the judgment was rendered. 

Kentucky: Carroll's Kentucky Code, 1906. 

Section 394. Real property may be conveyed by a commissioner 
appointed by the court if by a judgment in an action, a party be 
ordered to convey such property to another. . . . 

Section 395. The deed of the commissioner shall refer to the judg- 
ment, orders, and proceedings authorizing the conveyance so that the 
same may be readily found. 

Section 396. A conveyance made in pursuance of a judgment shall 
pass to the grantee the title of the parties ordered to convey the 
land. 

[Note: Cf. also 397-400, providing for examination and approval 
by the court, and recording.] 

Maine: Revised Statutes, 1903. Chapter 113. 

Section 8. If a person who has contracted in writing to convey real 
estate dies before making the conveyance, the other party may have a 
bill in equity in the supreme judicial court to enforce specific perform- 
ance thereof against his heirs, devisees, executors, or administrators, 
if commenced within three years from the grant of administration 
or from the time when he is entitled to such conveyance but not 
exceeding four years after the grant of administration provided that 
written notice of the existence of the contract is given to the executor 
or administrator within one year after the grant of administration. 



APPENDIX OF STATUTES 1 67 

Section 9. If it appears that the plaintiff is entitled to a convey- 
ance, the court may authorize and require the executor or administra- 
tor to convey the estate as the deceased ought to have done; and 
if any of the heirs or devisees are in the state and competent to act, 
the court may direct them instead of the executor or administrator to 
convey the estate or join with either in such conveyance; which con- 
veyance shall pass the estate as fully as if made by the contractor. 

Section 10. If the defendant neglects or refuses to convey according 
to the decree, the court may render judgment for the plaintiff for pos- 
session of the land, to hold according to the terms of the intended con- 
veyance and may issue a writ of seisin as in a real action under which 
the plaintiff having obtained possession shall hold the premises as 
effectually as if conveyed in pursuance of the decree; or the court may 
enforce its decree by any other process according to chancery proceed- 
ings. 

Section 11. If the person entitled to such conveyance dies before 
bringing his suit or before the conveyance is completed or such seisin 
and possession are obtained, his heir, devisee, or other person entitled 
to the estate under him may bring and prosecute such suit and shall be 
entitled to the conveyance or seisin and possession in like manner as 
the obligee. 

Section 12. If the party to whom any such conveyance was to be 
made or those claiming under him does not commence a suit as before 
provided and the heirs of the deceased party are under age or other- 
wise incompetent to convey the lands contracted for, the executor or 
administrator of the deceased may file a bill in equity in the supreme 
judicial court setting forth the contract and circumstances of the case; 
whereupon the court by its decree may authorize such executor or 
administrator to convey the estate as the deceased should have done; 
and such conveyance shall be deemed a performance of the contract 
on the part of the deceased so as to entitle his heirs, executors, or 
administrators to demand a performance thereof on the part of the 
other party. 

Maryland: Bagby's Annotated Code, 1911, Article XVI. 

Section 91. Where a decree has been made for a specific per- 
formance of a contract, or the conveyance of land, or for the sale of 
land, the court passing such decree shall have the same power to exe- 
cute said decree, or compel a compliance therewith in cases where the 
land or property lies, or parties reside in different counties from that in 



1 68 APPENDIX OF STATUTES 

which the decree was passed, as if the said parties resided, or land or 
property lay in the county where the decree was passed. 

Section 94. Where any person dies and leaves real or personal 
property to be sold for the payment of debts, or other purposes, and 
shall not appoint any person to sell and convey the same, or if the 
person appointed dies, or neglects or refuses to execute such trust, the 
court, upon the petition of any person interested in the sale of such 
property, may appoint a trustee to sell and convey the same, and apply 
the money arising from the sale to the purposes intended. 

Section 95. In all cases where the court shall decree that a deed of 
any kind shall be executed, a trustee to execute such deed may be 
appointed, and until such trustee shall execute a deed, the decree 
itself, if passed in the county where the land lies, shall have the same 
effect that the deed would if executed; but if passed in another county, 
the decree shall have that effect if recorded in the county where the 
land lies within six months from the date thereof. 

Massachusetts: Revised Laws, 1902. Chapter 147. 

Section 17. If a person who is seised or possessed of real or personal 
property or of an interest therein upon a trust, express or implied, is 
under the age of twenty-one years, insane, out of the commonwealth, or 
not amenable to the process of any court therein which has equity 
powers, and in the opinion of the supreme judicial court, the superior 
court, or the probate court it is fit that a sale should be made of such 
property or of an interest therein, or that a conveyance or transfer 
should be made thereof in order to carry into effect the objects of the 
trust, the court may order such sale, conveyance or transfer to be 
made and may appoint a suitable person in the place of such trustee to 
sell, convey or transfer the same in such manner as it may require. 
If a person so seised or possessed of an estate or entitled thereto upon 
a trust is within the jurisdiction of the court, he or his guardian may be 
ordered to make such conveyances as the court orders. 

Section i. No trust concerning land, except such as may arise or 
result by implication of law, shall be created or declared unless by an 
instrument in writing signed by the party or by the attorney of the 
party creating or declaring the trust. 

Section 6. A new trustee appointed under the provisions of the 
preceding section, or appointed in the place of a former trustee in 
conformity with a written instrument creating a trust, shall, upon 
giving such bond as may be required, have the same powers, rights, 



APPENDIX OF STATUTES 1 69 

and duties and the same title to the estate, whether as a sole or a joint 
trustee, as if he had been originally appointed; and the court may 
order any conveyances to be made by the former trustee or his repre- 
sentatives or by the other remaining trustees which it may find proper 
or convenient to vest the trust estate in the new trustee either solely or 
jointly with the others. 

Section 7. If a trustee is appointed by the probate court as the 
successor of a prior trustee, the court may dispense with the making 
and return of an inventory if it appears to be unnecessary, and in such 
case the condition of the bond shall be altered accordingly. 

Section 8. If an inventory is required to be returned by a trustee, 
the estate and effects shall be appraised by three suitable persons, who 
shall be appointed and sworn as is required by law relative to the in- 
ventory of the estate of a deceased person. 

Section 9. If a trustee who derives his appointment or authority 
from a court which has no jurisdiction within this commonwealth 
holds land in this commonwealth in trust for persons resident here he 
shall, upon petition to the probate court in the county in which the 
land lies, and after notice, be required to take out letters of trust from 
said court; and upon his neglect or refusal so to do, the court shall 
declare such trust vacant, and shall appoint a new trustee, in whom the 
trust estate shall vest in like manner as if he had been originally ap- 
pointed or authorized by said court. 

Section 10. The notice to the trustee required by the provisions of 
the preceding section may be given by serving on him a copy of the 
petition, and of the citation of the court issued thereon, fourteen days 
at least before the time fixed for the return of such citation, or by such 
other notice as the court may order. 

Michigan: Compiled Laws of 1897, Vol. I., p. 261, Part III. 
Chapter 29. 

Section 465. After the entry and enrollment of any final decree 
affecting or determining the title to real estate, a copy of such decree 
duly certified by the register in chancery of the county in which the 
same was entered under the seal of the court may be received and 
recorded in the office of the register of deeds of the proper county, and 
shall have the same effect as the original decree; and if such decree 
shall direct the execution of a conveyance or other instrument affecting 
the title to real estate, the record of such certified copy shall have the 
same effect as the record of such conveyance or other instrument 



lyo APPENDIX OF STATUTES 

affecting the title to real estate would have if duly executed pursuant 
to said decree. 

Note: See Act 107 of 1895 relative to recording of decrees by reg- 
isters of deeds. Sections 9044-9047. 

[Compare also proceedings against persons concealed and non-resi- 
dent defendants. Sections 485-501.] 

Minnesota: Revised Laws of 1905. 

Section 4391. The district court has power to pass the title to real 
estate by a judgment, without any other act to be done on the part of 
the defendant, when such appears to be the proper mode to carry its 
judgment into effect; and such judgment, being recorded in the proper 
registry of deeds, while in force, shall be as effectual to transfer such 
title as the deed of the defendant. 

Mississippi: Code of 1906. Chapter 19, Chancery Courts. 

Section 644. The decree of a court of chancery shall have the force, 
operation, and effect of a judgment at law in the circuit court. 

Section 645. When a decree shall be made for a conveyance, 
release, or acquittance, or other writing and the party against whom 
the decree is made shall not comply therewith, then such decree shall be 
considered and taken in all courts of law and equity to have the same 
operation and effect and shall be as available as if the conveyance, 
release, or acquittance, or other writing had been executed in con- 
formity to the decree; or the court may appoint a commissioner to 
execute such writing, which shall have the same effect as if executed by 
the party. 

(Compare also Section 646, saving the rights of infants.) 

Nebraska: Cobbey's Annotated Statutes, Vol. I, 1909. 

Section 1416. That when any judgment or decree shall be ren- 
dered for a conveyance, release, or acquittance, in any court of this 
state, and the party or parties against whom the judgment or decree 
shall be rendered do not comply therewith within the time mentioned 
in said judgment or decree, such judgment or decree shall have the 
same operation and effect, and be as available as if the conveyance, 
release or acquittance had been executed conformable to such judgment 
or decree. 

Section 1441. Real property may be conveyed by master com- 
missioners as hereinafter provided: First — When by an order or 
judgment in an action or proceeding, a party is ordered to convey such 



APPENDIX OF STATUTES I71 

property to another, and he shall neglect or refuse to comply with such 
order or judgment. Second — When specific real property is re- 
quired to be sold under an order or judgment of the court. 

Section 1442. A sheriff may act as a master commissioner under 
the second subdivision of the preceding section. Sales made under the 
same shall conform in all respects to the laws regulating sales of land 
upon execution. 

Section 1443. The deed of a master commissioner shall contain the 
like recital and shall be executed, acknowledged and recorded, as the 
deed of a sheriff, of real property sold under execution. 

Nevada: Cutting's Compiled Laws, 1900. 

Section 331 1. Where it requires the performance of any other act, 
a certified copy of the judgment may be served upon the party against 
whom it is given, or upon the person or officer who is required thereby, 
or by law, to obey the same and his obedience thereto enforced. 

Section 3240. When it is admitted, by the pleading or examination 
of a party, that he has in his possession, or under his control, any 
money or other thing capable of delivery, which, being the subject of 
litigation, is held by him as trustee for another party, or which belongs 
or is due to another party, the court may order the same, upon motion, 
to be deposited in court, or delivered to such party, upon such condi- 
tions as may be just, subject to the further direction of the court. 

New Hampshire: Public Statutes, 1901. Chapter 205, 
Section 15. If the decree or order requires the performance of 
any other thing than the payment of money, the court may make 
necessary orders and issue necessary process to secure, or compel the 
performance of the decree or order by means of the property attached 
or held by trustee process. (1866, Section 4227, sub-section 4.) 

New Jersey: General Statutes, 1895, p. 383, Chancery Act. 

Section 63. That where a decree of the court of chancery shall be 
made for a conveyance, release, or acquittance of lands, or any interest 
therein and the party against whom the said decree shall pass, shall not 
comply therewith by the time appointed, then such decree shall be 
considered and taken in all courts of law and equity to have the same 
operation and effect and be as available as if the conveyance, release, or 
acquittance had been executed conformably to such decree and this 
notwithstanding any disability of such party by infancy, lunacy, 
coverture, or otherwise. (Public Laws, 1852, p. 256.) 



172 APPENDIX OF STATUTES 

New Mexico: Compiled Laws, 1897. 

Section 2878. It shall be the duty of the judge of any court to 
cause judgment, sentence, or decree of the court to be carried into 
effect according to law. 

New York: Bliss's New York Annotated Code, 6th ed. Vol. I, 
Code of Civil Procedure. 

Section 717. Where it is admitted by the pleading or examination 
of a party that he has in his possession or under his control money or 
other personal property capable of delivery which being the subject of 
the action or special proceeding is held by him as trustee for another 
party, or which belongs, or is due to another party, the court may in its 
discretion grant an order upon notice that it be paid into or deposited 
in court or delivered to that party, with or without security subject to 
the further direction of the court. 

Section 718. Where the court has directed a deposit or delivery as 
prescribed in the last section, or where a judgment directs a party to 
make a deposit or delivery or to convey real property; if the direction 
is disobeyed, the court besides punishing the disobedience as a con- 
tempt, may by order reqmre the sheriff to take and deposit or deliver 
the money or other personal property or to convey the real property in 
conformity with the direction of the court. 

North Carolina: Clark's Code of Civil Procedure, 3d ed. 

Section 426. In any action wherein the court shall declare that a 
party is entitled to the possession of property, real or personal, the 
legal title whereof may be in another or others, parties to the suit, and 
the court shall order a conveyance of such legal title to him so declared 
to be entitled, or where for any cause, the court shall order that one of 
the parties holding property in trust shall convey the legal title therein 
to be held in trust to another person, although not a party, the court 
after declaring the right, and ordering the conveyance, shall have 
power, also, to be used in its discretion, to declare in the order then 
made, or in any made in the progress of the cause, that the effect 
thereof shall be to transfer to the party to whom the conveyance is 
directed to be made, the legal title of the said property, to be held in 
the same plight, condition and estate as though the conveyance ordered 
was in fact executed; and shall bind and entitle the parties ordered to 
execute or to take benefit of the conveyance, in and to all such pro- 
visions, conditions and covenants as may be adjudged to attend the 
conveyance, in the same manner and to the same extent as the con- 



APPENDIX OF STATUTES 173 

veyance would if the same were executed according to the order. And 
any party taking benefit under the judgment may have the same 
redress at law on account of the matter adjudged as he might on the 
conveyance, if the same had been executed. R. C, c. 32, Section 24. 
1850, c. 107, Section i. 

Section 427. Every judgment in which the transfer of title shall be 
so declared shall be regarded as a deed of conveyance, executed in due 
form and by capable persons notwithstanding the want of capacity in 
any person ordered to convey and shall be registered in the proper 
county under the same rules and regulations as may be prescribed for 
conveyances of similar property executed by the party; and all laws 
which may be passed for extending the time for registration of deeds 
shall be deemed to include such judgments provided the conveyance, if 
actually executed, would be so included. 

North Dakota: Revised Codes, 1905. 

Section 7077. In all actions arising under chapter 31 of this code 
and in actions commenced for the satisfaction of record of mortgages 
or other liens upon real property or for the specific performance of 
contracts relating to real property the court may by its judgment 
without any act on the part of the defendant transfer the title to real 
property and remove or discharge a cloud or incumbrance thereon, and 
a certified copy of such judgment may be recorded in the office of the 
register of deeds of the county in which the property afifected issituated. 

Ohio: General Code, 1910, Vol. III. 

Section 11 590. When the party against whom a judgment for a 
conveyance, release, or acquittance is rendered, does not comply there- 
with by the time appointed, such judgment shall have the same 
operation and eflfect and be as available as if the conveyance, release, 
or acquittance had been executed conformably thereto. 

Oklahoma: General Statutes, 1908. 

Section 5412. Any judgment or decree of a court of competent 
jurisdiction finding and adjudging the rights of any party to real 
estate or any interest therein, duly certified, may be filed for record 
and recorded in the office of the register of deeds with like effect as a 
deed duly executed and acknowledged. 

Section 5192. When a judgment shall be rendered for a convey- 
ance, release or acquittance, in any court of this State, and the party 
against whom the judgment shall be rendered does not comply there- 



174 APPENDIX OF STATUTES 

with by the time appointed, such judgment shall have the same opera- 
tion and eflEect, and be as available, as if the conveyance, release or 
acquittance had been executed conformably to such judgment; or the 
court may order such conveyance, release or acquittance to be executed 
in the first instance by the sheriff; and such conveyance, release or 
acquittance, so executed, shall have the same effect as if executed by 
the party against whom the judgment was rendered. This section 
shall apply to decrees rendered or to be rendered in suits now pending. 

Oregon: Lord's Oregon Laws, 1910, Vol. I. 

Section 414. A decree requiring a party to make a conveyance, 
transfer, release, acquittance, or other like act within a period therein 
specified shall, if such party do not comply therewith, be deemed and 
taken to be equivalent thereto. The court or judge thereof may 
enforce an order or decree in a suit, other than for the payment of 
money, by punishing the party refusing or neglecting to comply there- 
with, as for a contempt. 

Section 415. The provisions of section 2 1 3 to section 220, inclusive 
and section 227 to section 258, inclusive, of this Code, shall apply to 
the enforcement of decree so far as the nature of the decree may require 
or admit of it; but the mode of trial of an issue of fact in a proceeding 
against a garnishee shall be according to the mode of trial of such issue 
in a suit. 

Pennsylvania: Purdon's Digest, Vol. I, 13th ed., page 11 50 
Of Deeds, section 19. Public Laws, Chapter 83, April 10, 1901. 

Section i. In any proceedings at law or in equity in any of the 
courts of this commonwealth having jurisdiction, if the said court shall 
order a conveyance to be executed by either of the parties to the said 
proceeding of his or her interest in any lands or tenements to any other 
party or person, and the party so ordered shall neglect or refuse to 
comply with said order and make the said conveyance or shall die, flee 
the jurisdiction or become insane without having complied therewith, 
it shall be lawful for the said court to order and direct that such con- 
veyance be made by the sheriff, prothonotary, or clerk, or by a trustee 
specially appointed for that purpose; and the said conveyance having 
been duly executed by the said sheriff, prothonotary, clerk, or trustee, 
and acknowledged in open court shall be good and effective to convey 
the interest of the recusant, neglecting, deceased, persons fleeing the 
jurisdiction, or insane party, to the extent ordered by the court, the 
same as if it had been duly executed and delivered by such party per- 



APPENDIX OF STATUTES 1 75 

sonally: Provided, that this shall not prevent the said court from 
punishing the contempt of the said party by fine and imprisonment, if 
deemed necessary: Provided, further, that no such order shall be made 
in case of the decease of such party until notice shall have been given 
to his or her heirs and legal representatives by process duly served, if 
resident within the commonwealth, or, if not, by publication and copy 
mailed to the last known address of the same according as the court 
shall order and direct. 

Rhode Island: General Laws, 1909, page 1018. Chapter 289, 
Practice in Equity Causes. 

Section 23. Whenever the superior court shall decree, or shall have 
decreed, a conveyance of any real or personal estate, or of any right or 
interest therein, in any suit in equity, the court may direct the master 
in chancery to whom the cause shall be or shall have been referred, or 
before whom it shall be pending, to make, execute, acknowledge, and 
deliver such conveyance; and any conveyance made by any master 
under and according to such decree shall be effectual to pass the title 
to the estate conveyed and in the decree described. 

South Carolina: Code of Civil Procedure. Code of Laws, Vol. 
II, 1912. 

Section 343. Where a judgment requires the payment of money or 
the delivery of real or personal property the same may be enforced in 
those respects by execution as hereafter provided in this title. Where 
it requires the performance of any other act a certified copy of the 
judgment may be served on the party against whom it is given or the 
person or officer who is required thereby or by law to obey the same 
and his obedience thereto enforced. If he refuse, he may be punished 
by the court as for contempt. 

South Dakota: Revised Codes, 1903. Hippie's Ed. Code of 
Civil Procedure. 

Section 691. In all actions arising under chapter 29 of the Code of 
Civil Procedure of this State and in actions brought for the satisfaction 
of record of mortgages and other liens upon real property whenever the 
defendant is not found within the jurisdiction of the court and ser\nce 
of summons therein is made upon such defendant by publication or 
whenever any defendant in such action refuses or neglects to make a 
conveyance or cancel an incumbrance pursuant to the judgment of the 
court, the court shall have power by its judgment to determine and 



176 APPENDIX OF STATUTES 

establish the title to the property in question, to annul, cancel, and 
remove any and all conveyances and incumbrances constituting a 
cloud upon such title and whenever a conveyance of such property is 
directed to be made by such judgment and likewise in actions for the 
specific performance of contracts relating to real property in this 
state, whenever the defendant is not found within the jurisdiction of 
the court and service of summons therein is made on such defendant by 
publication or whenever any defendant in such action refuses or neg- 
lects to convey the property involved in the suit pursuant to the 
judgment of the court, this shall be done in behalf of such defendant by 
a trustee appointed by the court for that purpose. 

Tennessee: Shannon's Code, 1896. 

Section 6301. The decree may divest the title to property, real or 
personal, out of any of the parties and vest it in others and such decree 
shall have all the force and effect of a conveyance by such parties, 
executed in due form of law. 

Section 6302. The court may also appoint a commissioner to 
execute all necessary conveyances, releases and acquittances either in 
his name or in the name of the parties as the court may think proper; 
and the instrument so executed will be as valid as if executed by the 
party. 

Section 6303. If a decree direct a conveyance, release or acquit- 
tance to be made and the party against whom the decree is rendered 
fails or refuses to execute the same in the time specified in the decree 
or in a reasonable time if no particular time is thus specified, the decree 
operates in all respects as if the conveyance, release or acquittance 
was made. 

Section 6304. If the court see proper in the first instance or if 
upon issuance of the attachment the delinquent cannot be found, a writ 
of sequestration may issue against the estate of such delinquent to 
compel obedience to the decree. 

Section 6305. Courts of chancery are further authorized to issue 
such process, mesne and final, as has been used in such courts and all 
writs for the collection of money or to obtain possession of real or 
personal property in use in the common law courts, may be adapted 
to the execution of decrees in the courts of chancery. 



APPENDIX OF STATUTES 1 77 

Texas: Sayles, Texas Civil Statutes, 1897, Vol. I. On Judg- 
ments. 

Section 1338. Where the judgment is for the conveyance of real 
estate or for the delivery of personal property, the decree may pass 
title to such property without any act to be done on the part of the 
party against whom the judgment is rendered. 

Section 1339. The court shall cause its judgments and decrees to be 
carried into execution; and where the judgment is for personal property 
and it is shown by the pleadings and evidence and the verdict, if any, 
that such property has an especial value to the plaintiff, the court may 
award a special writ for the seizure and delivery of such property to the 
plaintiff and the court may in addition to the other relief granted in 
such case enforce its judgment by attachment, fine and imprisonment. 

Utah: Compiled Laws, 1907. Civil Procedure. Chapter 42. 

Section 3279. When the judgment requires the person against 
whom it is rendered to execute and deliver to any other person a con- 
veyance of any specific real property, and the person against whom it is 
rendered shall refuse or neglect to execute and deliver said conveyance 
for five days after the service upon him of a certified copy of such 
judgment, or if he is absent or concealed, so that service of such certi- 
fied copy cannot be had, upon proof satisfactory to the court that such 
service has been made, or that it cannot be made by reason of such 
absence or concealment, the person entitled to the conveyance may 
obtain from the court an order that the certified copy of the judgment, 
together with the order, be recorded by the recorder of deeds of the 
county where the real property is situated; and when recorded, it 
shall give to the person entitled to such conveyance a right to the pos- 
session of the real property described in the judgment, and to hold the 
same according to the terms of the conveyance ordered, in like manner 
as if it had been conveyed in pursuance of the judgment. The record- 
ing of any judgment as above provided shall not prevent the court 
rendering such judgment from enforcing the same by any proper 
process, according to the course of proceedings therein. 

Vermont: Public Statutes, 1906. Chapter 65, Court of Chancery. 

Section 1302. The court of chancery may enforce performance of a 
decree, or obedience thereto, by execution against the body of the party 
against whom such decree is made, or against his goods, chattels, or 
estate, and, for want thereof, his body, according to the nature of the 
case. 



178 APPENDIX OF STATUTES 

Section 1303. When a decree is made to foreclose the right in 
equity of redeeming mortgaged premises, if the premises are not 
redeemed agreeably to the decree, the clerk of the court may issue a 
writ of possession, to be executed like, and have the same effect as, 
similar writs issued by a court of law after judgment in an action of 
ejectment. 

Section 1304. In the foreclosure of the equity of redemption in 
lands, either at law or in chancery, where the time of redemption has 
expired, the party procuring such foreclosure shall cause to be recorded 
in the ofl&ce of the clerk of the town where the land lies, within thirty 
days after the expiration of the time of redemption, a certified copy of 
the record, if such foreclosure is at law, or the decree of such fore- 
closure, or a certified copy thereof, if it is in chancery. If such lands 
lie in an unorganized town or gore, the record required by this section 
shall be made in the office of the clerk of the county in which the lands 
lie. 

Section 1305. Such foreclosure shall not transfer the title to such 
lands as against subsequent purchasers, mortgagees or attaching 
creditors, unless such copy of record or such decree or copy thereof is 
thus left for record, or is afterwards, and prior to the acquiring of any 
interest in, or lien on, the lands by a purchaser, mortgagee or attach- 
ing creditor, left for record in like manner; and, if not thus left for 
record, such lands shall be subject to redemption by subsequent pur- 
chasers, mortgagees or attaching creditors, as though the time of 
redemption had not expired. 

Section 1306. When a decree is made by a court of chancery for a 
conveyance, release or acquittance, and the party against whom the 
decree is made does not comply therewith by the time appointed, the 
decree shall be held to have the same effect as if the conveyance, 
release or acquittance had been executed agreeably to such decree. 
But such decree shall not be deemed a conveyance of real estate, unless 
a copy of same, certified by the clerk of the court, is recorded in the 
office in which a deed of such real estate is required by law to be 
recorded. 

Virginia: Pollard's Virginia Code, 1904. 

Section 3418. A court of equity, in a suit wherein it is proper to 
decree, or order the execution of any deed or writing, may appoint a 
commissioner to execute the same; and the execution thereof shall be 
as valid to pass, release, or extinguish the right, title, and interest of 



APPENDIX OF STATUTES 179 

the party on whose behalf it is executed, as if such party had been at 
the time capable in law of executing the same, and had executed it. 
(Cf. also 34i8a-3423.) 

Washington: Remington and Ballinger's Codes and Statutes, 1910. 
Vol. I. Title IV. The Enforcement of Judgments. Chapter VI. 

Section 605. The several superior courts may, whenever it is 
necessary, appoint a commissioner to convey real estate, — 

1. When, by a judgment in an action, a party is ordered to convey 
real property to another, or any interest therein ; 

2. When real property, or any interest therein, has been sold under 
a special order of the court, and the purchase money paid therefor. 

Section 606. The deed of the commissioner shall so refer to the 
judgment authorizing the conveyance that the same may be readily 
found, but need not recite the record in the case generally. 

Section 607. A conveyance made in pursuance of a judgment shall 
pass to the grantee the title of the parties ordered to convey the land. 

Section 612. In case of a judgment to compel a party to execute a 
conveyance of real estate, the court may enforce the judgment by 
attachment or sequestration, or appoint a commissioner to make the 
conveyance. 

West Virginia: Code of 1906. Chapter 132, Decrees of sale, etc. 

Section 3999. A court of law or equity, in a suit in which it is 
proper to decree or order the execution of any deed or writing, may 
appoint a commissioner to execute the same; and the execution thereof 
shall be as valid to pass, release, or extinguish the right, title, and 
interest of the party on whose behalf it is executed, as if such party 
had been at the time capable in law of executing the same and had 
executed it. 

Wisconsin: Statutes (consolidated) 1911. Chapter 127. 

Section 2794. Whenever, in the exercise of its authority, a court 
shall have ordered the deposit, delivery or conveyance of money or 
other property and the order is disobeyed, the court besides punishing 
the disobedience as for contempt may make an order requiring the 
sheriff to take the money or property and deliver, deposit or convey it 
in conformity with the direction of the court, or the court may pass 
title to real estate by its judgment, without conveyance. (1856, 
Chapter 120, Section 155.) 



l8o APPENDIX OF STATUTES 

Wyoming: Compiled Statutes, 1910. 

Section 4614. When the party against whom a judgment for a 
conveyance, release or acquittance is rendered does not comply there- 
with by the time appointed such judgment shall have the same opera- 
tion and effect, and be as available as if the conveyance, release or 
acquittance had been executed conformably to such judgment. 

England: ii Geo. IV. & i Will. IV. Chapter 36. 

An Act for altering and amending the Law regarding Commitments 
by Courts of Equity for Contempts, and the taking Bills pro Confesso. 

Section XV. That when any Person shall have been directed by any 
Decree or Order to execute any Deed or other Instrument, or make a 
Surrender or Transfer, or to levy a Fine, or suffer a Recovery, and shall 
have refused or neglected to execute, make, or transfer, or levy or 
suffer the same, and shall have been committed to Prison under Process 
for such Contempt, or, being confined in Prison for any other Cause, 
shall have been charged with or detained under Process for such Con- 
tempt, and shall remain in such Prison, the Court may, upon Motion or 
Petition, and upon Affidavit that such Person has, after the Expiration 
of Two Calendar Months from the Time of his being committed under, 
or charged with, or detained under such Process, again refuse to execute 
such deed or Instrument, or make such Surrender or Transfer, or levy 
or suffer such Fine or Recovery, order or appoint One of the Masters 
in Ordinary, or if the Act is to be done out of London, then, if neces- 
sary, One of the Masters Extraordinary, to execute such Deed, or 
other Instrument, or to make such Surrender or Transfer, for and in the 
Name of such Person, and to levy such Fine or suffer such Recovery in 
his name, and to do all Acts necessary to give Validity and Operation 
to such Fine and Recovery, and to lead or declare the Uses thereof; 
and the Execution of the said Deed or other Instrument, and the 
Surrender or Transfer made by the said Master, and the Fine or 
Recovery levied or suffered by him, shall in all respects have the same 
Force and Validity as if the same had been executed or made, levied or 
suffered, by the Party himself; and within Ten Days after the Execu- 
tion or making of any such Deed or other Instrument, or Surrender or 
Transfer, or levying or suffering such Fine or Recovery, Notice thereof 
shall be given by the adverse Solicitor to the Party in whose Name the 
same is executed or made; and such Party, as soon as the Deed or 
other Instrument, or Surrender, Transfer, Fine, or Recovery shall be 
executed, made, levied, or suffered, shall be considered as having 
cleared his Contempt, except as far as regards the Payment of the 



APPENDIX OF STATUTES l8l 

Costs of the Contempt, and shall be entitled to be discharged there- 
from under any of the Provisions of this Act applicable to his Case; 
and the Court shall make such Order as shall be just, touching the 
payment of the Costs of or attending any such Deed, Surrender, 
Instrument, Transfer, Fine, or Recovery. 

Section XV, i6. That where a Person shall be committed for a 
Contempt in not delivering to any Person or Persons or depositing in 
Court or elsewhere, as by any Order may be directed. Books, Papers, 
or any other Articles or Things, any Sequestrator or Sequestrators 
appointed under any Commission of Sequestration shall have the same 
Power to seize and take such Books, Papers, Writings, or other Articles 
or Things, being in the Custody or Power of the Person against whom 
the Sequestration issues, as they would have over his own Property; 
and thereupon such Articles or Things so seized and taken shall be 
dealt with by the Court as shall be just; and after such Seizure it shall 
be lawful for the Court upon the Application of the Prisoner, or of any 
other Person in the Cause or Matter, or upon any Report to be made in 
pursuance of this Act, to make such Order for the Discharge of the 
Prisoner, upon such Terms, and, if it shall see fit, making any Costs in 
the Cause, as to the Court shall seem proper. 

England: ii Geo. IV. & i Will. IV. Chapter 60. 

An Act for amending the Laws respecting Conveyances and Trans- 
fers of Estates and Funds vested in Trustees and Mortgagees; and for 
enabling Courts of Equity to give Effect to their Decrees and Orders 
in certain Cases. 

Section III. And be it further enacted, That where any Person 
seised or possessed of any Land upon any Trust or by way of Mortgage 
shall be lunatic, it shall be lawful for the Committee of the Estate of 
such Person, by the Direction of the Lord Chancellor of Great Britain, 
being intrusted by virtue of the King's Sign Manual with the Care 
and Commitment of the Custody of the Persons and Estates of Persons 
found idiot, lunatic, or of unsound Mind, to convey such Land, in the 
Place of such Trustee or Mortgagee, to such Person and in such Manner 
as the said Lord Chancellor shall think proper; and every such Con- 
veyance shall be as effectual as if the Trustee or Mortgagee, being 
lunatic, had been of sane Mind, Memory, and Understanding, and had 
made and executed the same. 

Section VIII. And be it further enacted. That where any Person 
seised of any Land upon any Trust shall be out of the Jurisdiction of 
or not amenable to the Process of the Court of Chancery, or it shall be 



1 82 APPENDIX OF STATUTES 

uncertain, where there were several Trustees, which of them was the 
Survivor, or it shall be uncertain whether the Trustee last known to 
have been seised as aforesaid be living or dead, or, if known to be dead, 
it shall not be known who is his Heir; or if any Trustee seised as afore- 
said, or the Heir of any such Trustee, shall neglect or refuse to convey 
such Land for the Space of Twenty-eight Days next after a proper 
Deed for making such Conveyance shall have been tendered for his 
Execution by, or by an Agent duly authorized by, any Person entitled 
to require the same; then and in every or any such Case it shall be 
lawful for the said Court of Chancery to direct any Person whom such 
Court may think proper to appoint for that Purpose, in the Place of the 
Trustee or Heir, to convey such Land to such Person and in such 
Manner as the said Court shall think proper; and every such Convey- 
ance shall be as effectual as if the Trustees seised as aforesaid, or his 
Heir, had made and executed the same. 

England: 13 & 14 Victoria, Chapter 60. 

An Act to Consolidate and amend the Laws relating to the Convey- 
ance and Transfer of Real and Personal Property vested in Mort- 
gagees and Trustees. 

Section III. And be it enacted. That when any Lunatic or Person 
of unsound Mind shall be seised or possessed of any Lands upon any 
Trust or by way of Mortgage, it shall be lawful for the Lord Chancellor, 
intrusted by virtue of the Queen's Sign Manual with the Care of the 
Persons and Estates of Lunatics, to make an Order that such Lands 
be vested in such Person or Persons in such Manner and for such 
Estate as he shall direct; and the Order shall have the same Effect as 
if the Trustee or Mortgagee had been sane, and had duly executed a 
Conveyance or Assignment of the Lands in the same Manner for the 
same Estate. 

Section XX. And be it enacted, That in every Case where the 
Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, 
shall, under the Provisions of this Act, be enabled to make an Order 
having the Effect of a Conveyance or Assignment of any Lands, or 
having the Effect of a Release or Disposition of the contingent Right 
of any Person or Persons, born or unborn, it shall also be lawful for the 
Lord Chancellor, intrusted as aforesaid, or the Court of Chancery, as 
the Case may be, should it be deemed more convenient, to make an 
Order appointing a Person to convey or assign such Lands, or release 
or dispose of such contingent Right; and the Conveyance or Assign- 
ment, or Release or Disposition, of the Person so appointed, shall, 



APPENDIX OF STATUTES 1 83 

when in conformity with the Terms of the Order by which he is ap- 
pointed, have the same effect, in conveying or assigning the Lands, or 
releasing or disposing of the contingent Right, as an Order of the Lord 
Chancellor, intrusted as aforesaid, or the Court of Chancery, would in 
the particular Case have had under the Provisions of this Act; and in 
every Case where the Lord Chancellor, intrusted as aforesaid, or the 
Court of Chancery, shall under the Provisions of this Act be enabled 
to make an Order vesting in any Person or Persons the Right to trans- 
fer any Stock transferable in the Books of the Governor and Company 
of the Bank of England, or of any other Company or Society estab- 
lished or to be established, it shall also be lawful for the Lord Chancel- 
lor, intrusted as aforesaid, or the Court of Chancery, if it be deemed 
more convenient, to make an Order directing the Secretary, Deputy 
Secretary, or Accountant General for the Time being of the Governor 
and Company of the Bank of England, or any OflScer of such other 
Company or Society, at once to transfer or join in transferring the 
Stock to the Person or Persons to be named in the Order; and this 
Act shall be a full and complete Indemnity and Discharge to the 
Governor and Company of the Bank of England, and all other Com- 
panies or Societies, and their Officers and Servants, for all Acts done 
or permitted to be done pursuant thereto. 

England: 15 & 16 Victoria, Chapter 55. 
An Act to extend the Provisions of " The Trustee Act, 1850." 
Section I. That when any Decree or Order shall have been made by 
any Court of Equity directing the Sale of any Lands for any Purpose 
whatever, every Person seised or possessed of such Land, or entitled to 
a contingent Right therein, being a Party to the Suit or Proceeding in 
which such Decree or Order shall have been made, and bound thereby, 
or being otherwise bound by such Decree or Order, shall be deemed to 
be so seised or possessed or entitled (as the Case may be) upon a Trust 
within the Meaning of the Trustee Act, 1850; and in every such Case 
it shall be lawful for the Court of Chancery, if the said Court shall 
think it expedient for the Purpose of carrying such Sale into effect, to 
make an Order vesting such Lands or any Part thereof, for such Estate 
as the Court shall think fit, either in any Purchaser or in such other 
Person as the Court shall direct; and every such Order shall have the 
same Effect as if such Person so seised or possessed or entitled had been 
free from all Disability, and had duly executed all proper Conveyances 
and Assignments of such Lands for such Estate. 



INDEX 



INDEX 



Actio arbiiraria, 40. 
Actiones famosae, 42. 
Aequilas agit in personam, 137. 
Agency, Relation of trust to, 140. 
Alabama, Legislation as to enforcement 

of decrees, 19. 
Ames, James Barr, 90, 91, 97, 115, ii7j 

136, 139- 
Appendix of Statutes, 157-183. 
Archaic law : Enforcement of judgments 

in, 72; Reparation in, 39. 

Bacon, Lord, 82, 98. 

Beames, John, 14. 

Bills of Lading Acts, 125. 

Blackburn, Lord, 153. 

Bridgeman, Lord Keeper, 106. 

Building contracts. Enforcement of, 69. 

Cairns, Lord, 119. 

California: Enforcement of decrees in, 
22; Powers of courts of equity in, 153. 

Canon law. Procedure of, 76. 

Cestui que trust: Declaration of trust 
by, 145; Disability of, 143; Nature of 
right of, 88, 116, 138; Power to pro- 
ceed against stranger, 138; Release by, 
141; Transfer by, 144, 146. 

Cestui que use. Nature of right of, 92. 

Civil Law, Specific relief in, 53. 

Clarke, Sir Thomas, 102. 

Cloud on title, Cancellation in rem, 67. 

Coke, Sir Edward, 84, 89, 92, 97, 103, 

151- 

Colorado, Legislation as to enforcement 
of decrees, 20. 

Connecticut, Legislation as to enforce- 
ment of decrees, 17. 

Contempt: Imprisonment for, 79; Jury 
trial, 4. 

Contempts Act (English), 16. 



Conveyance by officer of court, 19. 
Cottenham, Lord, 109. 
Covenants running with land, 109. 
Coventry, Lord, 81. 
Cowper, Lord, 68. 

Decrees: Execution of in chancery, 78; 

Specific execution of, 9. 
Delaware, Enforcement of decrees in, 24. 
Digby, Sir Kenelm, 91. 
Dillon, John F., 150. 
Disseisor, Purchaser from, m. 
Dower in equitable estates, 102. 

Eldon, Lord, 13, 16, 43. 

EUesmere, Lord, 84. 

Enforcement in rem, Types of statute, 
18. 

England, Legislation as to enforcement 
of decrees, 19. 

Equitable servitudes, 109. 

Equity: A system of remedies, 152; 
Dual system of law and, 151; Pro- 
cedural theory of, 7. 

Escheat of equitable estates, 103. 

Execution of decrees. Supervision of, 69. 

Factors' Acts, 125. 

Federal courts, Enforcement of decrees 

in, 25. 
Feoffee to uses: FeofTment of, 92; Heir 

of, 94- 
Forfeiture of equitable estates. 102. 
French law. Execution in, 49. 
Frowicke, Chief Justice, 94. 

German law. Execution in, 50. 

Gififord, Lord, 13. 

Gilbert, Chief Baron, 108, 151. 

Glanvill, 72. 

Guilford, Lord, 81. 



187 



i88 



INDEX 



Hale, Baron, 107. 
Hardwicke, Lord, loi. 
Hatherley, Lord, 119. 
Henley, Lord Keeper, 102, 103. 
Holland, T. E., 115. 
Holmes, Mr. Justice, 136. 
Hume, Joseph, 16. 

Idaho, Enforcement of decrees in, 22. 
Illinois, Legislation as to enforcement of 

decrees, 19. 
Indiana, Legislation as to enforcement of 

decrees, 19. 
Injunctions in labor disputes, 3. 
Interests, Balancing of, 1 28. 
Interpleader, 63. 
Iowa, Legislation as to enforcement of 

decrees, 19. 

Jekyll, Sir Joseph, 143. 

Jenks, Edward, 134. 

Jessel, Sir George, no, 113, 152. 

Jury trial in contempt proceedings, 4. 

Kentucky, Legislation as to enforcement 
of decrees, 19. 

Langdell, C. C, 7, 71, 75, 115, 152. 

Leach, Sir John, 13. 

Legal title. Superiority of, 131. 

Legis actiones, 45. 

Limitations, Statute of, 142. 

Maitland, F. W., 89, 96, 99, 115, 126, 

130, 133- 
Mandatory injunction, 68. 
Mansfield, Lord, loi, 103, 148. 
Maryland: Enforcement of decrees in, 

59; Legislation as to enforcement of 

decrees, 17. 
Massachusetts: Enforcement of decrees 

in, 56; Legislation as to enforcement 

of decrees, 25. 
Mississippi, Legislation as to enforce- 
ment of decrees, 19. 
Missouri, Legislation as to enforcement 

of decrees, 19. 
Money decrees, Enforcement of, 83. 



Montana: Enforcement of decrees in, 
22, 58. 

Nebraska, Legislation as to enforcement 
of decrees, 19. 

Nemo praecise cogi potest ad factum, 50. 

Nevada, Enforcement of decrees in, 20. 

New Hampshire, Enforcement of de- 
crees in, 21. 

New Jersey, Legislation as to enforce- 
ment of decrees, 17. 

New Mexico, Enforcement of decrees 
in, 21. 

New York, Legislation as to enforcement 
of decrees, 20. 

Notice, Constructive, 130. 

Nottingham, Lord, 99. 

O'Connell, Daniel, 16. 
O'Hagan, Lord, 119. 
Ohio, Legislation as to enforcement of 
decrees, 17. 

Pennsylvania : Legislation as to enforce- 
ment of decrees, 20; Specific relief in, 
41. 

Plumer, Sir Thomas, 147. 

Possession vaut litre, 128. 

Purchaser for value without notice, 114. 

Rebellion, Commission of, 77. 

Redesdale, Lord, 13, 142. 

Relief, Substitutional, 74. 

Restitutio in integrum, 43. 

Restitution in natura, 6. 

Rhode Island, Legislation as to enforce- 
ment of decrees, 20. 

Rights, Equitable, 88. 

Rights in rem, 87, 127. 

Roman law: Equity in, 150; Execution 
in, 45; Interdicts in, 43; Missio in 
possessionem, 48; Natural execution, 
48; Procedure ex/ra orJznew, 47 ; Res- 
titution in, 40; Specific relief in, 39. 

Royal Commission (Chancery), 13. 

St. Leonards, Lord, 11, 109. 
Salmond, J. W., 140. 



INDEX 



189 



Set-off, 14 r. 

South Carolina, Enforcement of decrees 

in, 21. 
Specific relief, 6. 
Sugden, Sir Edward, 11, 15, 16, 43, 109, 

151- 

Tabula in naufragio, 129. 

Tennessee, Legislation as to enforcement 

of decrees, 17. 
Texas, Legislation as to enforcement of 

decrees, 60. 
Tortious feoffment, 135. 
Torts, Specific reparation of, 68. 
Trevor, Sir John, 106. 
Trustee: Bankruptcy of, 107; Creditors 



of, 107; Disseisor of, 108; L^gal estate 
of, 132, 134, 148; Release by, 141. 

Trustees, Legislation with respect to, 66. 

Trusts, Obligation theory of, 127. 

Use: Bacon's definition of, 98; Coke's 

definition of, 92, 97. 
Uses: Enforcement of. 91; Statute of, 95. 

Virginia, Legislation as to enforcement of 
decrees, 19. 

Warehouse Receipts Acts, 125. 
Willoughby, R. M. P., 134. 
Wilmot, Chief Justice, 90. 
Writ de execuHone judicii, 77. 



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UNIVERSiTY OF CALIFORNU 



